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2018 (1) TMI 1142 - AT - Income TaxGains arising out of sale of shares/units - treated as business income instead of short term capital gain - set off speculation losses - Held that:- As decided in assessee's own case [2012 (3) TMI 544 - ITAT MUMBAI] We were informed that in earlier years when assessee suffered Capital Loss the AO treated them as business loss and Speculation loss - as seen from the paper book placed, the assessee had made specific request to the Assessing Officer to set off speculation losses determined in earlier year’s consequent to change of head from short term capital loss to speculation loss on the same set of transactions. Therefore, we are of the opinion that this aspect of the claim has to be examined by the authorities, since earlier year orders were not available on record. In case the Assessing Officer treated the short term capital loss in earlier years as business income and consequently as speculation loss by virtue of provisions of section 73 Explanation (2), similar treatment is also required in this year. Respectfully following the principles laid down by the Hon'ble Bombay High Court in the case of Lokmat Holdings [2010 (2) TMI 94 - BOMBAY HIGH COURT] the assessee’s contentions prima facie are to be allowed. Since it requires examination of the treatment given by AO in earlier years, we are of the opinion that the matter can be restored to the file of the CIT (A) who after giving due opportunity to the Assessing Officer and the assessee, should examine and consider the claim afresh - Therefore, respectfully following the same, we restore the issue back to the file of Ld. CIT(A) on similar lines.
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