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TMI Blog2022 (8) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... peculative business income. As per section 72(1)(i) the assessee is clearly entitled to claim the set off of the unabsorbed business losses from speculation business income of the impugned year. The claim of the assessee therefore, we hold, in accordance with law. We fail to understand how the decision of Hon'ble Delhi High Court in the case of DLF Commercials [ 2013 (7) TMI 334 - DELHI HIGH COURT] relied upon by the AO to deny set off of brought forward losses from speculative income of the year, helps the case of the Revenue. The findings in the said case, reproduced in the order of the AO are in relation to section 73 of the Act, which deal with carry forward and set off of speculative losses, which is not the fact in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided in favour of assessee. - ITA No. 378/Ahd/2019 - - - Dated:- 27-7-2022 - SMT. ANNAPURNA GUPTA , ACCOUNTANT MEMBER AND SMT. SUCHITRA KAMBLE , JUDICIAL MEMBER Assessee by : Shri S. N. Divetia , AR Revenue by : Shri V. k. Singh , Sr. DR ORDER Per Annapurna Gupta, Accountant Member Present appeal has been filed by the assessee against order passed by the ld. Commissioner of Income-Tax(Appeals), Gandhinagar [hereinafter referred to as Ld. CIT(A) under section 250(6) of the Income Tax Act, 1961 ( the Act for short) dated 04.01.2019 pertaining to the Asst. Year 2015-16. 2. Ground No. 1 raised by the assessee is as under: 1. Learned Commissioner of Income Tax(A) erred in law and on facts in not allowing set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss cannot be or is not wholly set off against income under any head of income in accordance with the provisions of section 71, so much of the loss as has not been so set off or, where he has no income under any other head, the whole loss shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and- (i) it shall be set off against the profits and gains, if any, of any business or profession carried on by him and assessable for that assessment year; (ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on: Provided that where the whole or any part of such loss is sustained in any such b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the Ld. Counsel for the assessee that unabsorbed business losses can be set off against any income from business, be it speculative or otherwise, is correct. Section 72(1)(i) clearly states so. There is nothing in the section denying setoff of unabsorbed brought forward business losses from speculative business income. 6. In the facts of the present case, which are not disputed, the assessee has returned speculative business income from intraday trading in shares amounting to Rs. 12,47,145/-. The AO we have noted applied section 43(5) of the Act and categorically held the said income to be speculative in nature. Para 3.1 of the AO's order categorically hold so stating as under: it was seen in trading account, of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business losses is in dispute and there is speculative income and not speculative losses at all. 9. As for the decision of the Hon'ble Allahabad High Court in the case of Shri Ram Gupta, neither the AO nor the Ld. DR has given the complete citation of the decision nor filed copy of the same before us. Therefore we have no basis for determining the proposition laid down by the Hon'ble High Court in the said case and the said decision as a consequence is of no assistance to the assessee. 10. In view of the above the claim of set off of brought forward business losses against current years speculative business income is held to be in accordance with law. And the AO is directed to allow the same to the assessee. Ground of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even the ld. CIT(A) did not take note of the aforesaid pleadings of the assessee and upheld the addition on the ground that the assessee had not produced any evidence to prove identity of Chirag B. Patel. Considering the fact that out of total unsecured loan taken by the assessee to the tune of Rs. 35,98,244/- all was found genuine except this very small amount of Rs. 18,000/-, and noting the fact that the assessee had given all cooperation to the Revenue in this regard pointing out that notice under section 133(6) of the Act had been sent in incorrect name of the depositor, had pointed out the correct name of the depositor and also sought to serve of the notice by the assessee himself, but none of the request of the assessee was acced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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