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TMI Blog2012 (11) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is not an income from any other source but from purchase and sale of shares consequently loss of same nature and as such explanation has been applied rightly. When the fact is clear, law automatically follows. - Decided against the assessee. - I.T.A. No. 841 of 2004 - - - Dated:- 12-10-2012 - Mr. Kalyan Jyoti Sengupta, And Joymalya Bagchi JJ. K. J. Sengupta, A.C.J.:- This appeal has been directed against the judgment and order dated 11th August, 2004 passed by the Income Tax Appellate Tribunal, E Bench, Kolkata in I.T.A. 2425/Kol/2003 for the assessment year 2000-01. The said appeal has been admitted by this Hon ble Court by an order dated 23rd December, 2004 on the following substantial questions of law:- (i) Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and income from house properties. It was noted by the A.O. on fact that the principal business of the appellant was not of banking or granting of loans and advances. In view of the above factual findings A.O. requested the assessee to explain why the share trading loss should not be deemed as speculation loss in view of provisions of Section 73 of the Income Tax Act, 1961. The appellant explained to the said quarries. It was stated in the explanation that it earned interest amounting to Rs.5,48,716/- under the head income from other sources , which is more than the loss of Rs.3,31,022/- suffered in the business of purchase and sale of shares. It was explained further that out of the total fund of Rs.1,44,38,560/- more than 62% was inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the income shown in the return should have been treated under head other sources , as the principal business of the assessee is granting of loans and advances. His grievance is that learned Tribunal did not consider nor decide the assessee s contention that the interest income was assessable under the head other sources . The criterion of turnover may be relevant when it is a case of comparing commodities. In order to elucidate this plea he contends that when share trading is compared with granting of loans turnover may be relevant. Turnover in respect of a commodity would depend upon how many times the same amount of money is rolled over in repeated activities of buying and selling the commodity. Money given by way loan is ordinari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as speculation loss. Learned counsel for the respondent submits that Assessing Officer on fact after having examined accounts and accompanying documents found that total funds available with the assessee on 31st March, 1999 was Rs.1,44,82,000/- out of which an amount of Rs.22.75 lakhs was given as loans as on 31st March, 1999 representing 15.70% of the funds available with the assessee. As per loan confirmation accounts filed by the assessee along with the return of income it is seen that loans of Rs.50.75 lakhs have been given only during the period from end of November, 1999 to end of March, 2000. Out of this loan Rs.33.75 lakhs have been given only between mid February, 2000 to March, 2000. Hence, it is clear that for most part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness. (2) Where for any assessment year any loss computed in respect of a speculation business has not been wholly set off under sub-section (1), so much of the loss as is not so set off or the whole loss where the assessee had no income from any other speculation business, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and (i) it shall be set off against the profits and gains, if any, of any speculation business carried on by him assessable for that assessment year; and (ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on. (3) In respect of allowance on account of depreciation or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly loss of same nature and as such explanation has been applied rightly. When the fact is clear, law automatically follows. The task of this Court is to see that on given fact finding the law has been applied properly or not. We are unable to accept the contention on this fact finding that the said explanation has been misapplied. The decision cited by Mr. Khaitan, learned Senior Counsel is wholly distinguishable in the facts and circumstances of this case as on the fact it is found concurrently against which there has been no challenge, that the appellant company is not entitled to get the benefit of income from other sources as contemplated in explanation. Therefore, we do not find any reason to interfere with the judgment and order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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