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TMI Blog2016 (8) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. In this appeal, the revenue has raised the following grounds of appeal:- "1. That on the facts and the circumstances of the case and in Law, the CIT(A)-I, Kolkata had erred in deleting the addition made by disallowing to set off speculation loss of Rs. 37,43,573/- against business income. 2. That on the facts and the circumstances of the case and in Law, the CIT(A)-I, Kolkata had erred in directing the A.O to allow to set off speculation loss of Rs. 37,43,573/- against business income. 3. That on the facts and the circumstances of the case and in Law, the CIT(A)-I, Kolkata had erred in deleting the expenses of Rs. 4,32,999/-. Whereas such disallowance was determined by the assessee's own Auditor while furnishing the Audit Repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res acquired in the course of business of purchase and sale of shares representing income of assessee speculation business loss and therefore, entitled to be set off against business loss. 6. Having considered the above two decisions as relied on by the ld.AR of the assessee before the CIT(A) held that the loss incurred from purchase and sale of shares on proprietary account was eligible for set off against such brokerage income. The AO is accordingly directed to allow such set off. 7. As aggrieved by the order of the CIT(A), now the revenue is in appeal before us and contended that the CIT(A) held in deleting the addition by disallowing the speculation loss against business income and relied on the order of the AO. 8. In reply, the ld.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd supra. The relevant finding is reproduced hereunder:- "13. I also note that the Explanation to Sec. 73 not only regards or treat the difference between purchase value and sales value of shares as income or loss derived from speculation business but every income or accretion or every expenditure or loss associated with the purchase and sale of shares of other companies is considered or regarded to be the income or loss of speculation business. The ITAT, Kolkata Bench, in the case of Trade Apartments Pvt. Ltd in ITA No. 2087/Kol/2010 for the assessment year 1996-97 has held that dividend which was earned by the assessee on the shares acquired in the course of business of purchase and sale of shares; represented income of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ground no-3 involving the disallowance of expenses of Rs. 4,32,999/- being penal in nature by the AO. Before the CIT-A, the assessee contended that the rules framed by the National Stock Exchange can not be equated with any Statutory rules and regulations, considering the same, the CIT-A deleted said addition. 13. Before us, the Ld.DR relied on the order of AO and Ld.AR reiterated the same submissions as advanced before the CIT-A. 14. Heard both representatives and perused the relevant material on record. The question that now arises is whether this amount was a payment in the nature of penalty in terms of section 37 of the Act. In this regard we may refer to the case of INCOME TAX OFFICER vs. GDB SHARE & STOCK BROKING SERVICES LTD BY I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts on hand. 16. We also find a similar issue was answered in the case of GOLDCREST CAPITAL MARKETS LTD. vs. INCOME TAX OFFICER by ITAT, MUMBAI 'B' BENCH reported in (2010) 130 TTJ 0446 the relevant portion of order is reproduced herein below: 10. We have heard the rival contentions and perused the orders carefully. The short question arising here is that whether violations of the Rules and Regulations of NSE Ltd. by its members could be treated as an offence or as an act prohibited by law. In case, it can be termed as an offence or an act prohibited by law, no doubt such expenditure would fall within the ambit of s. 37(1) of the Act. Rule. 1(1) of the NSE Ltd clearly brings out that it has been constituted as a limited company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory rule or law. Though, the learned CIT(A) has referred r. 4C in Appendix 222 to SEBI Rules, 1992, this rule only specifies the condition to be satisfied for the SEBI Board to grant a certificate to a stock broker. It is true that working of stock exchanges can be regulated by SEBI under the SEBI enactment but violation of rules and regulations framed by such stock exchanges cannot be per se considered as violation of any provision of SEBI enactment. The fine imposed on the assessee by the disciplinary bench of the NSE was admittedly for violation of the regulation of NSE Ltd., and neither the AO nor the learned CIT(A) has been able to point out how such violation or breach of regulations could be treated on par with the breach of a rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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