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TMI Blog2013 (6) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... n directing the Assessing Officer to assessee interest earned on bank deposits under the head income from business or profession. 2. Ld.CIT(A) erred in law and on the facts of the case in holding that the loss suffered by the assessee on account of purchase and sales of share was not speculative loss. 3. Ld. Commissioner of Income Tax(A) erred in law and on the facts of the case in directing the Assessing Officer to set off brought forward business losses and depreciation against the interest earned by the assessee on bank deposits. 3. Briefly stated the facts giving rise to this appeal are that the case was taken up for scrutiny and notices u/s 143(2) and 142(1) of the Income Tax Act, 1961 (for short the Act), along with que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-08 dated 15.6.2011 and another order in ITA No.5464/Del/2011 for AY 2008-09 dated 22.5.2012 wherein the issues involved in ground no. 1 and 2 of the present appeal are decided in favour of the assessee. From a bare reading of the impugned order, we observe that the Commissioner of Income Tax(A) has followed the judgment of ITAT in ITA No. 103/Del/2011 (supra) with following observations and findings:- 11.2 After careful consideration of the facts and legal position, the exceptions provided in Explanation to S.73 are applicable to the facts of the case. Hence, the loss arising on account of trading of shares cannot be considered as loss from speculation business. Rule of consistency to be followed. The AO can take a different stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was not applicable as the assessee s case falls in the exception provided in Explanation to Section 73 of the Act. The operative part of the order reads as under:- 6. We have heard the rival contentions in light of the material produced and precedent relied upon. We can gainfully here refer the provisions of Section 73 :- Explanation -Where any part of the business of a company[other than a company whose gross total income consists mainly of income which is chargeable under the heads Interest on securities , Income from house property , Capital gains and Income from other sources ], or accompany the principal business of which is the business of banking or the granting of loans and advances) consists in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether the case of an assessee falls in exceptions provided in Explanation to Section 73 of the Act or not and to decide as to whether the principal business of the assessee is that of granting loans and advances, the decisive factor is the nature of the activities of the assessee and not the actual income from such activities during a particular year. In that view of the matter, there was no mistake in the order of the Commissioner (Appeals) in holding that the case of assessee-company was not hit by Explanation to section 73 and the loss so suffered should be treated as business loss and not speculation loss. 7. In the light of the aforesaid precedent, we are of the considered opinion, that the Ld. Commissioner of Income Tax (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y change of facts and legal position. The Assessing Officer has not recorded any finding in this regard that he is taking a different stand from the previous years due to change in facts and circumstances of the case during the year under consideration. The Commissioner of Income Tax(A) has followed the decision of Special Bench of ITAT Kolkata in the case of DCIT vs Venkateswar Investment Finance Pvt. Ltd. 93 ITD 177 (Kol)(SB) where in para 6 and 10, it has been held that to decide the issue as to whether the case of assessee falls in exception provided in Explanation to section 73 of the Act or not and to also decide whether the principal business of the assessee is that of granting loans and advances, the decisive factor is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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