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2011 (8) TMI 479 - AT - Income TaxLoss arising out of transaction in Futures and Options - As the issue is settled in favour of the assessee because most of the Benches have taken a view that the decision of the Special Bench of the Tribunal in the case of Shree Capital Services Ltd. v. Asstt. CIT [2009 (7) TMI 172 - ITAT CALCUTTA ] holding that insertion of clause (d) in section 43(5) is applicable from A.Y 2006-07 and even loss incurred before 25-1-06 should also be reckoned as only business loss - Therefore, we set aside the order of the ld. CIT(A) and direct the AO to assess the net profit from F&O at ₹ 3,27,687 under the head business. Portfolio advisory fee -CIT(A) observed that as per section 48 deduction from capital gains would be allowed in a case where the expenditure is incurred wholly or exclusively in connection with the transfer or for the cost of acquisition or cost of improvement thereto - Since the expenditure on account of portfolio management fee was in the nature of revenue outgoing therefore could not be treated as cost of acquisition of asset or improvement and since same had nothing to do with the transfer, same was not allowable - the decision of the Mumbai Bench in the case of Devendra Motilal Kothari v. Dy. CIT [2011 (9) TMI 104 - ITAT MUMBAI] wherein it was held that portfolio management fee is not allowable expenditure u/s.48 - Decided against the assessee. Deduction under section 80C - the claim was made by way of a letter without revising the return - Revenue submitted that AO has no right to allow any claim in the absence of revised return - the decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. v. CIT [2006 (3) TMI 75 - SUPREME Court]. held that this restriction is not applicable if the issue is raised before the appellate authority - Therefore, the power of the appellate authority to entertain such claim is still there - Therefore, in the interests of justice we set aside the order of the ld. CIT(A) and remit the matter to the file of the AO with a direction to consider this claim.
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