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2011 (8) TMI 395 - AT - Income TaxRectification of Mistake - Speculation loss or business loss - entire amount of interest paid by the assessee to his creditors as business expenditure and to treat the amount of interest received by the assessee from his debtors as his income from money lending businessthe provision contained in section 2(ac) of the Securities Contract (Regulation) Act, 1956, and amendment made in section 43(5) by the Finance Act, 2005 - Held that:- Amendment to Sectin 43(5) is not applicable to aY 2006-06 - It has been held that transactions in derivatives constitute speculative transactions for and up to assessment year 2005-06 - However, it is also a matter of fact that a decision of the Tribunal in favour of the assessee existed (2007 -TMI - 59684 - ITAT BOMBAY-J ) on the date of passing assessment order. This decision, though reversed later (2009 -TMI - 59828 - ITAT CALCUTTA), cannot be ignored. Thus, we are of the opinion that the earlier decision of the Tribunal does lead to an inference that legal controversy subsisted and two opinions were possible in the matter. In other words, the assessment order does not suffer from a mistake apparent from record in the sense that there was no patent mistake of law. Therefore, it is held that the Assessing Officer did not have jurisdiction under section 154 to correct the mistake.
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