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TMI Blog2018 (7) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-Tax Act, the Tribunal was right in law in holding that the assessee was an investment company and therefore the loss in the share transactions was not a speculative loss within the meaning of the aforesaid Explanation ?" 2. This Reference relates to Assessment Year 1989-90. 3. The statement of case to the extent relevant to anser the question as forwarded to us reads as under : " 2. The question before Tribunal was regarding the applicability of the Explanation to Section 73 of the Act. The assessment year is 198990. In the assessment, the following income was brought to tax: (a) Income from Business : Rs. 87,784/ (b) Income from other sources : Rs. 9,66,013/ (c) Gross total income : Rs. 10,53,697/ (d) Percentage of (b) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the decision of this Court in Commissioner of Income tax Vs. Darshan Securities (P) Ltd. (Income Tax Appeal No.2886 of 2009) dated 2nd February, 2012. However, the bone of contention between the parties is in whose favour is the issue covered. The Revenue contends that on facts the Explanation to Section 73 of the Act applies as the assessee's gross total income does not mainly consists of income from other sources so as to fall in the exclusion provided is Section 73 of the Act. The assessee contends otherwise. Therefore, it would be appropriate to first reproduce the Explanation to Section 73 of the Act, which reads as under : "Explanation - Where any part of the business of a company [(other than a company whose gross total i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to him would result in the Explanation to Section 73 of the Act becoming applicable to the present facts and it not being considered as an investment company. In support of the same, he invited our attention to the assessment order which is at Exh.A to the Statement of Case. 8. On perusal of the assessment order, we find that in paragraph 3.4 it records that the gross total income as returned by the assessee consists of the following : (a) Income from Business Rs. 87,684/ (b) Income from other sources Rs. 9,66,013/It further records that the above is the result of the various transactions which have been referred to therein as under : "3.4 ..... However, the above is the result of following transactions : a) Profit from trading in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent, to satisfy ourselves, we went through the basis of the Revenue's contention viz. the assessment order and find no substance in the contention. 10. Therefore, once the finding of fact has not been challenged, it must follow that Section 73 of the Act which introduces a deeming fiction to define a speculation business will not apply as the bracketed portion in the Explanation carves out an exception so far as main income is from "Income from other sources". Thus, in our view, the question has proposed for our consideration stands concluded by the decision of this Court in Darshan Securities Pvt. Ltd. (supra). 11. In fact, Mr. Malhotra very fairly states that if the Revenue's submission that the assessee's income mainly con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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