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TMI Blog2015 (5) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. The Tribunal merely invited attention of the parties that the claim of error trade has not been examined either by the Assessing Officer or by the Commissioner of Income Tax (Appeals). The assessee's advocate had no objection to sending back the matter to the assessing officer for necessary verification. Thereafter the Tribunal found that the matter requires fresh examination and in case 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 if the law laid down by the Tribunal in the case of Parker Securities Ltd. (2006 (5) TMI 110 - ITAT AHMEDABAD-B ) applies. Such direction far from concluding the matter only highlights the aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the revenue challenges the order passed by the Income Tax Appellate Tribunal dated 29th June, 2012. 2. The appeal, according to Mr.Malhotra raises four substantial questions of law. They are formulated at Page 7 and 8. They are as under: 6.1 Whether, on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal was justified in deleting the disallowance made by the A.O. u/s 40(a)(ib) of the deduction of STT claimed by the Assessee? 6.2 Whether, on the facts and circumstances of the case and in law, the Hon'ble Tribunal was justified in restoring back to the A.O. the issue regarding the loss said to have been incurred on account of error trade to examine afresh whether the loss occurred on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this provision, namely, section 40(a)(ib) as it stood then. That provision clearly states that any sum paid on account of security transaction tax under Chapter VII of the Finance Act, 2004 cannot be the subject matter of deduction in computing income chargeable under head Profits and gains of business or profession . Mr.Malhotra submits that the nature of relationship is not to the knowledge of the Assessing Officer or authorities. The Assessing Officer rightly, therefore, disallowed this deduction. The Tribunal has permitted him. Though, the language of the statute prohibits the same by accepting the stand of the assessee that he is merely collecting tax which in any event was payable by the parties dealing with the shares, namely, its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been referred by the assessing officer and rightly relied upon by Mr.Mistri, learned senior counsel for the assessee. Section 98 and 100 of the Security Transaction Tax Act has been set out in the order of the assessing officer. In this case the assessment year is 2005-06 and the assessee pointed out as to how this very tax which was to be collected by the stock exchange from every person being purchaser or seller has been collected and for remission and onward forwarding the same to the revenue. We do not see that we should go into any provision and particularly the deduction that could have been claimed on the basis of such payment by clients of the assessee. Beyond being a conjecture and surmise, we do not think that either the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point out that the loss if any has not occurred on account of error trade and conducted by the assessee. The Question No.2 is therefore, not substantial question of law at all. It is fairly stated that the Tribunal has followed in relation to Question No.3, Section 14A and Rule 8D of the Income Tax Rules, 1962. The issue is squarely covered by the case of Godrej and Boyce Mfg. Co. Vs. Deputy Commissioner of Income Tax (328 ITR Page 81). 8. In relation to the last question, it is clear that the judgment of this Court in case of Commissioner of Income Tax vs. Kotak Securities Ltd. (2012) 340 ITR 333 covers the question. The party with which we are concerned is the Stock Exchange and transaction charges paid by the assessee being in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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