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2018 (3) TMI 886 - AT - Income TaxBenefit of indexation to the assessee while calculating the capital loss - additional ground raised by the assessee - Held that:- As decided in Pruthvi Brokers and Shareholders Ltd. (2012 (7) TMI 158 - BOMBAY HIGH COURT) AO could accept new claim only a new return was filed by an assessee. Here as stated earlier the case is of additional ground. The assessee was not aware as to how the claim made by it would be treated by the AO during the set aside proceedings. Only after receiving the order it came to know that loss has been treated as capital loss. No chance for it to claim indexation. Only remedy left was to raise an additional ground on the first opportunity available and it did so. FAA was fully empowered to admit the additional ground and to decide the same on merits without asking for comments/remand report of the AO. Assessee had also filed an application u/s. 154 of the Act in that regard. The AO should have dealt it disregarding the filing of appeal. We are of the opinion the order of the FAA allowing indexation to the assessee with regard to the capital loss does not need any interference from our side. - Decided against revenue. Applicability of the provisions of explanation to section 73 - carry forward of loss on sale of investment - Held that:- As during the appellate proceedings the FAA had held that the assessee was covered by the exceptions mentioned in the explanation. He had calculated the figure of capital gains and other sources and had compared the same with the figure of business or professional loss. It was a simple arithmetic exercise. As the gross figure was more than business loss figure the FAA allowed the claim of the assessee. In our opinion there is no legal or factual infirmity in his order. Secondly in the case laws relied upon by the assessee before us the judicial forums have held that loss in share trading was not to treated as speculative loss in case of an company whose principal business was trading in shares and that the said amendment to the explanation was retrospective and clarificatory in nature. - Decided against revneue
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