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2013 (10) TMI 222 - HC - Income TaxWhether the income earned by the assessee through sale of shares should be taxed as business income or should be treated as capital gain – Held that:- Such issue had to be decided on the basis of the question whether the assessee is involved in any business of buying and selling shares or had purchased and sold the shares by way of investment - Assessing Officer went completely in a wrong direction and relied on the explanation to section 73 of the Act - Section 73 of the Act pertains to "losses in speculation business". Sub-section (1) thereof provides that any loss computed in respect of speculation business carried on by the assessee shall not be set off except against profits and gains of another speculation business. Sub-section (2) of section 73, likewise, puts certain restrictions on carrying forward the speculative losses. Sub-section (4) further provides that no loss shall be carried forward under that section for more than four assessment years. Thus the entire section has application when the assessee has incurred loss or intends to carry forward non-absorbed loss. Explanation to section 73 only provides for a deeming fiction in certain circumstances where the assessee would be deemed to be carrying on a speculation business. Such deeming fiction would not apply in situations not covered under section 73 since such explanation is applicable to section 73 only – Decided against the Revenue.
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