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2017 (8) TMI 186 - HC - Income TaxLoss incurred on sale and purchase of shares treated as a business loss - nature of income - Held that - It is not disputed that the assessee carries on the business of brokerage and his income is shown from brokerages. The Commissioner (Appeals) and the Tribunal have come to the conclusion that the impugned loss has occurred to the assessee in respect of error trade. The loss is not on the account of assessee s own trading in shares. In the case of M/s. HSBC Securities & Capital Markets (India) P. Ltd. (2015 (5) TMI 122 - BOMBAY HIGH COURT) this Court was considering the Appeal against order of Tribunal wherein the Tribunal observed that if the loss is found to have occurred on account of error trade conducted by assessee on behalf of clients then the claim will have to be accepted as business loss. This Court has accepted the said finding in M/s. HSBC Securities & Capital Markets (India) P. Ltd. (2015 (5) TMI 122 - BOMBAY HIGH COURT). Same view is taken in the case of Commissioner of Income Tax Vs. Anush Shares and Securities Pvt. Ltd. (2015 (7) TMI 1224 - MADRAS HIGH COURT). Loss is on account of error trade the Judgment of the Tribunal cannot be faulted with.
Issues:
Assessment of loss on sale and purchase of shares as a business loss, whether speculative or error trade. Analysis: 1. The appellant contended that the Tribunal wrongly accepted the claim of the assessee regarding the loss incurred on sale and purchase of shares as a business loss, arguing that the losses were speculative in nature under section 73 of the Income Tax Act. The counsel relied on a judgment of the Punjab and Haryana High Court to support this argument. The Assessing Officer considered the loss in share transactions as speculation loss, which should be added to the total income of the assessee. 2. On the other hand, the respondent's counsel argued that the loss was due to error trade, not speculation. The business activities of the assessee included trading, brokerage, and trading in shares, where the loss occurred due to clients not accepting delivery. The counsel cited judgments from the Madras High Court and the Karnataka High Court to support the contention that if the loss is due to error trade conducted on behalf of clients, it should be accepted as a business loss. 3. The High Court analyzed the submissions from both parties and reviewed the orders passed by the Tribunal and other authorities. It noted that the genuineness of the transactions was not disputed, and the assessee's income was derived from brokerages. The Commissioner (Appeals) and the Tribunal concluded that the loss was due to error trade on behalf of clients, not the assessee's own trading in shares. The High Court referred to its previous judgment in a similar case and upheld the Tribunal's decision that if the loss is due to error trade by the assessee on behalf of clients, it should be considered a business loss. The Court found no fault with the Tribunal's judgment and dismissed the appeal, stating that no substantial question of law arose. 4. In conclusion, the High Court upheld the Tribunal's decision that the loss was on account of error trade and not speculative in nature. The judgment highlighted the importance of differentiating between error trade and speculative activities in determining the nature of losses in share transactions. The Court's decision was based on the specific facts and circumstances of the case, supported by relevant legal precedents from other High Courts.
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