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TMI Blog2021 (1) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... al apportionment of expenditure between speculation and non-speculation activity. Merely because the assessee has maintained a consolidated profit and loss account for all the activities put together thereby making the AO not to deduce the profitability of speculation activity and non-speculation activity independently, the same would not become sacrosanct. Hence, the decision relied upon by the ld. AR at the time of hearing before us on Rajasthan State Warehousing Corporation [ 2000 (2) TMI 5 - SUPREME COURT] cannot be made applicable at all in the facts and circumstances of the instant case. Hence, the ground No.1 raised in Miscellaneous Application deserves to be dismissed. Business carried out by the assessee comprise of purchase and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of expenses attributable to speculation and non-speculation activity. It is not the case of the assessee that the depreciation claimed on assets were never used for speculation activity carried out by the assessee. Accordingly, the argument that depreciation is only an allowance and not an expenditure holds no water and deserves to be dismissed in the facts of the instant case. Hence, alternative ground No.3 raised by the assessee in the Miscellaneous Application deserves to be dismissed. Mistakes pointed out by the assessee in the Miscellaneous Application does not fall under the ambit of mistake apparent from record within the meaning of Section 254(2) of the Act. All the issues pointed out therein are debatable issues and would only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Bench has erred in not appreciating the fact that the amount of 1,71,39,837/- consists of Depreciation of ₹ 30,51,937/-, which is an allowance and not expense and hence the same cannot be subject matter of apportionment in any case." 2. At the outset, we find that this Tribunal had accepted the fact that the assessee had carried on composite business of derivative trading and share trading. The expenses have been debited in the profit and loss account of the assessee for all the business put together but it is a fact that assessee had carried out both speculation activity as well as non-speculation activity, the profitability of both and taxability thereof are governed by distinct provisions under the Act. Hence, it is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 265 Taxman 3. Hence, upto A.Y.2015-16, the activity carried out by the assessee on purchase and sale of shares comprising of both speculative and non-speculative nature would have to be determined independently and hence, the profitability of each claim needs to be separately worked out which has been done by this Tribunal in fair and rational manner. Accordingly, the ground No.2 raised by the assessee in the Miscellaneous Application deserves to be dismissed. 4. We find that the ld. AR had made an alternative plea on without prejudice basis that even if apportionment of expenditure need to be carried out, depreciation of ₹ 30,51,937/- shall not form part of said apportionment as same is not an expenditure but only an allowa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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