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TMI Blog2018 (9) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer. The Tribunal, however, found on fact that such inquiry was made and this appears from the above quoted passages of the decision of the Tribunal. In course of hearing Mr. Mitra contended that the fact that such inquiry was made did not appear from the assessment order and hence, there was no error in the decision of the Commissioner. But that is not the specific factor which had persuaded the Commissioner to remand the matter. As we have already observed, the Commissioner’s view was that no inquiry was made. The Tribunal found otherwise. In the event such inquiry was made, we do not think it was necessary that the nature and scope of such inquiry ought to have been clearly spelt out in the assessment order. Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case before accepting the claim of the assessee. On going through the assessment records, I find that no enquiry was conducted by the A.O. to determine as to the nature of the transactions giving rise to the loss of ₹ 2,44,55,975/- and whether deduction of the same was allowable against various income shown by the assessee in its return of income. That the enquiries were required to be made yet no such enquiry was made is further established from the fact that the assessee in its letter dt. 26.10.2015 has made elaborate submissions and argument but none of these submissions or argument were either called for by the A.O. during the assessment proceeding or furnished by the assessee before the A.O. it is therefore, cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said details before the AO and in the order sheet entry of the AO on the date of hearing 04.03.2014, the AO has recorded the fact that the assessee had filed all these details before the AO And the case was accordingly adjourned to 25.03.2014 before the AO. On 19.03.2014 the AO issued notice u/s. 133(6) of the Act to M/s. Ashika Stock Broking Ltd through whom derivative trading transaction had been carried out by the assessee. On 24.03.2014 the AO has recorded the fact that reply to the notice u/s 133(6) of the Act was received and the same is filed. Thereafter on 25.03.2014 the AO has recorded the fact that the AR of the assessee appeared and produced books of accounts which were examined and returned. The case was finally discussed and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the loss arising out of deemed business set off against the income arising out of business proper unless otherwise provided. The question however remains whether the explanation to Sub-Section (4) of Section 73 relied upon by Mr. Lodh provides otherwise. A plain reading of the explanation quoted above cannot be said to have provided otherwise. In that case the irresistible conclusion is that the assessee is entitled to set off such loss arising out of deemed business against the income arising out of business proper . 9. The Hon ble Calcutta High Court also did not agree with the view taken by the Hon ble Delhi Court in the case of CIT Vs. DLF Commercial Developers Ltd. 35 Taxman.com 280 (Del) referred to by the CIT in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was the failure on the part of the AO to make proper enquiries on the derivative loss claimed as a business loss by the assessee in the return of income. In this regard we have already pointed out that in the earlier part of this order the enquiries made by the AO with regard to the derivative loss declared by the assessee. It cannot be said that the AO was not conscious of the fact that the assessee was a company and that loss trading in derivatives had to be looked at from the point of Explanation to section 73 of the Act. AO was fully satisfied that the loss from derivative was a genuine loss and had to be allowed as a normal business loss. No adverse facts came to our knowledge on the enquiries made by him with regard to the genuinene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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