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2021 (1) TMI 165 - AT - Income TaxRectification u/s 254 - profitability of speculation activity and non-speculation activity - HELD THAT:- It is required to determine the profitability of speculation activity separately and non-speculation activity separately. Admittedly, this was not done by the assessee at all while filing the return of income. This was sought to be done by the AO in a different fashion which admittedly resulted in absurdity, and the same was rectified by this Tribunal by making a rational apportionment of expenditure between speculation and non-speculation activity. Merely because the assessee has maintained a consolidated profit and loss account for all the activities put together thereby making the AO not to deduce the profitability of speculation activity and non-speculation activity independently, the same would not become sacrosanct. Hence, the decision relied upon by the ld. AR at the time of hearing before us on Rajasthan State Warehousing Corporation [2000 (2) TMI 5 - SUPREME COURT] cannot be made applicable at all in the facts and circumstances of the instant case. Hence, the ground No.1 raised in Miscellaneous Application deserves to be dismissed. Business carried out by the assessee comprise of purchase and sale of shares of other companies was considered as a speculative transaction and the same falls within the Exception provided in Explanation to Section 73 only with effect from 01/04/2015 which has been held to be prospective in operation by the Hon’ble Supreme Court in the case of Snowtex Investment Ltd., vs. PCIT [2019 (5) TMI 1165 - SUPREME COURT.] - Hence, upto A.Y.2015-16, the activity carried out by the assessee on purchase and sale of shares comprising of both speculative and non-speculative nature would have to be determined independently and hence, the profitability of each claim needs to be separately worked out which has been done by this Tribunal in fair and rational manner. Accordingly, the ground No.2 raised by the assessee in the Miscellaneous Application deserves to be dismissed. AR had made an alternative plea on without prejudice basis that even if apportionment of expenditure need to be carried out, depreciation shall not form part of said apportionment as same is not an expenditure but only an allowance. In this regard, we find that depreciation is granted to the assessee for usage of the assets by the assessee for its business purposes. There is no evidence furnished by the assessee as to what part of the assets on which depreciation was claimed were used for speculation activity and non-speculation activity. Ultimately, this Tribunal had only taken the total expenditure debited in the P & L Account including the depreciation for the purpose of apportionment of expenses attributable to speculation and non-speculation activity. It is not the case of the assessee that the depreciation claimed on assets were never used for speculation activity carried out by the assessee. Accordingly, the argument that depreciation is only an allowance and not an expenditure holds no water and deserves to be dismissed in the facts of the instant case. Hence, alternative ground No.3 raised by the assessee in the Miscellaneous Application deserves to be dismissed. Mistakes pointed out by the assessee in the Miscellaneous Application does not fall under the ambit of mistake apparent from record within the meaning of Section 254(2) of the Act. All the issues pointed out therein are debatable issues and would only amount to review of the decision already taken by this Tribunal, which is not permissible under proceedings u/s.254(2) of the Act.
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