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2012 (3) TMI 544 - AT - Income TaxAddition u/s 36 - Held that:- We are of the opinion that the assessee satisfies the conditions stated under section 36(2) and accordingly the Assessing Officer is directed to allow the amounts. Ground No.1.1 is accordingly allowed. Disallowance under section 40(a)(i) - TDS u/s 195 - Held that:- We are of the opinion that the issue requires detailed examination by the CIT (A). The CIT (A) has not adjudicated whether the amount paid by the assessee was chargeable under the provisions of the act so as to attract the provisions of section 195 and consequently 40(a)(i). The contentions of the assessee with reference to the nature of the payment, applicability of various provisions and the DTAA between India and USA require detailed consideration. Since these aspects were not examined, we are of the opinion that the issue is to be restored to the file of the CIT (A) with a direction to adjudicate the issue on merits accordingly. Therefore, we set aside his order to that extent and restore the issue in Ground No.1.2 to the file of the CIT (A). Gains arising out of sale of shares/units are treated as business income instead of short term capital gain - Held that:- We were informed that in earlier years when assessee suffered Capital Loss the AO treated them as business loss and Speculation loss. As seen from the paper book placed, the assessee had made specific request to the Assessing Officer to set off speculation losses determined in earlier year’s consequent to change of head from short term capital loss to speculation loss on the same set of transactions. This aspect of the claim has to be examined by the authorities, since earlier year orders were not available on record. Without going into merits of rival contentions, we are of the opinion that the additional ground being a legal ground can be admitted and we order accordingly.
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