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TMI Blog2015 (6) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... segment against the profits in Future & Options - Held that:- Explanation to sec. 73 can be applied after computing the Gross total income, meaning thereby, the same shall not override the proviso to sec. 43(5) of the Act. Hence, as per the decision of Kolkatta bench of Tribunal in the case of M/s Arena Textiles & Industries Ltd (supra), the loss from cash segment can be set off against the profit from derivatives. Thus, after computing the Gross Total Income in the above said manner, the application of provisions of Explanation to sec.73 is required to be examined. Accordingly, we modify the order of Ld CIT(A) on this issue and restore the matter of applicability of Explanation to sec. 73 to the file of the AO with the direction to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccountant Member: The appeal filed by the assessee is directed against the order dated 01-12-2011 passed by Ld CIT(A)-9, Mumbai and it relates to the assessment year 2008-09. 2. The appeal is barred by limitation by 52 days. The assessee has moved a petition requesting the bench to condone the delay. It was stated therein that the income tax appeal matters were looked after by an official named Mr.Hemant Agarwal, who resigned after completion of hearing with Ld CIT(A). It was further stated that a staff named BipinKumar Pathak, who is in-charge of delivering of letters placed the appellate order in the table of Mr.Hemant Agarwal and hence the same remained unattended. Subsequently, when the director made enquiries about the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing reliance on the decision of Hon ble Bombay High Court rendered in the case of CIT Vs. Kotak Securities Ltd (340 ITR 333), held that the above said payments would require tax deduction at source u/s 194J of the Act and accordingly confirmed the disallowance made u/s 40(a)(ia) of the Act. 6. At the time of hearing, the Ld A.R submitted that this issue has been decided in favour of the assessee by the jurisdictional High Court in the case of The CIT Vs. M/s The Stock and Bond Trading Company (ITA No.4117 of 2010 dated 14.10.2011). A perusal of the said order shows that the High Court has followed its earlier decision rendered in the case of The Income tax Commissioner, Mumbai City-4 Vs. Angel Capital Debit Market Ltd in Income tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay High Court rendered in the case of CIT Vs. HDFC Bank Ltd (ITA No.330 of 2012). On the contrary, the Ld D.R submitted that the decision rendered in the case of HDFC Bank Ltd would apply only in respect of disallowance of interest. The Ld D.R submitted that the AO did not disallow any portion of interest expenditure and he has disallowed only administrative expenses by applying the provisions of Rule 8D(2)(iii) of the IT Rules. 9. Admittedly, the AO has disallowed a sum of ₹ 63,848/- in respect of Administrative expenses by applying the provisions of Rule 8D(2)(iii) of the Act. The decision rendered by the jurisdictional High Court in the case of HDFC Bank Ltd (supra) would cover only the interest disallowance that is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y whose principal business is the business of banking or granting of loans and advances. We have already noticed that the AO expressed the view that the Explanation given in sec. 73 shall override the proviso sec, 43(5) of the Act and accordingly held that the loss incurred in the Cash segment of share trading should be treated as Speculation loss . Accordingly, he rejected the claim of set off claimed by the assessee. 11. The Ld CIT(A) upheld the decision of the AO by observing that the assessee has deliberately managed the incurring of expenses in order to reduce the business income to lower than the amount of dividend income, even though the dividend income was offered under the head Business. He further placed reliance on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the heads referred to in the Explanation to sec. 73 of the Act. The Ld A.R submitted that the view expressed by the Kolkatta bench of Tribunal with regard to the application of Explanation to sec. 73 has been thus upheld by the jurisdictional Bombay High Court. 14. Thus, we notice that the Hon ble Bombay High Court has held that the Explanation to sec. 73 can be applied after computing the Gross total income, meaning thereby, the same shall not override the proviso to sec. 43(5) of the Act. Hence, as per the decision of Kolkatta bench of Tribunal in the case of M/s Arena Textiles Industries Ltd (supra), the loss from cash segment can be set off against the profit from derivatives. Thus, after computing the Gross Total Income in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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