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TMI Blog2020 (4) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessing officer in making addition of Rs. 11,11,080/- on account of disallowance of set off of loss of shares F & O against undisclosed income declared before DDIT(Inv.)-I, Surat. 3 It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 4. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal." 3. Brief facts of the case are that the assessee filed its Return of Income at Rs. 2,57,673/- including income from profits and gain from business and also income from other sources, after claiming deduction chapter-VI A of the Act and the same was processed u/s.143(1) of the Income Tax Act. Subsequently, the case of the assessee re-opened after serving statutory notices and seeking reply of the assessee, the order of assessment u/s.143(3) r.w.s 147 of the Act was passed by disallowing set off of loss of shares F & O against undisclosed income. 4. Being aggrieved with the order of the ld.Assessing Officer(AO), the assessee filed before the ld.CIT(A) and ld.CIT(A) dismissed the appeal filed by the assessee on the ground that same was not filed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Now, coming to the merits of the additions made by the Revenue Authorities, the ld.Authorised Representative(AR) appearing on behalf of the assessee reiterated the same arguments as was raised before the ld.CIT(A) and the same were contained in para no.6 of the order of the ld.CIT(A) which is reproduced below: "6. CONDONATION OF DELAY 6.1 The appeals are filed on 18.02.2016 i.e. after the time gap of more than 11 months. The AR filed a letter date NIL, received in tapal on 3rd March, 2017 in which, he explained the reason for delay as under :- " We enclose herewith an appeal u/s 246 of the I T Act, 1961 against the order u/s 143(3) of the I T Act relating to A Y 2010-11 made on 25.03.2014. The order was served on me on 30.03.2014 Though this appeal should have been filed in the office of the Hon'ble' CIT (A) on or before the due date, counting the period of 30 days from the date of communication of the order, but, it could not be so filed because I was out of station for visiting to my relative for medical emergency and Impugned order was unaware of the provisions of the Law. Hence, this order was not attended to immediately and in the process the filing of appeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te' and hence, can be claimed as 'business loss' and not speculation loss. I wish to draw your attention to the FAQ from the website of SEBI and judicial ruling given by the Hon'ble ITAT, Delhi and various others in support of my claim being F&O Loss of Rs. 11,11,080/- as business loss. This business loss was then adjusted/ claimed against the undisclosed income, Rs. 12,66,200/- for that AY as 'set off as provided under Chapter VI of the Act read with Sections 70 and 71 of the Act in as much as the fact that if the undisclosed income is assessed as business income then the set off to be allowed under Section 70 and if the same is considered under any other head other than 'salaries', set off to be under Section 71 of the Act." 12. We have also considered the decision in the case of Hon'ble Supreme Court in the case of CIT Vs. D.P.Sandu Bros. [2005] Taxmann 713 (SC) wherein it has been held that section 14 and section 56 of the Act constitutes of complete code for the purpose of determining under which head of particular income would be taxed. 13. We have also considered the decision of Hon'ble Madras High Court in para no.10 and page 6 of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res is to be followed, wherein it was held that once a loss is determined, the same should be set off against the income determined under any other head of income and there was no reason for denial of benefit u/s. 71 of the IT Act......................" ". ............... The income-tax is only one tax and levied on the sum total on the income classified and chargeable under various heads. Section 14 has classified different heads of income and income under each head is separately computed. Income which is computed in accordance with law is one income and it is not collection of distinct tax levied separately on each heads of income and it is not an aggregate of various taxes computed with reference to each of the different sources separately. There is only one assessment and the same is made after the total income has been ascertained. The assessee is subject to income-tax on his total income though his income under each head may be well below the taxable limit. Hence the loss sustained in any year under any heads of income will have to be set off against income under any other head. In this case, the Assessing Officer made addition of Rs. 28,50,000/- as undisclosed income und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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