TMI Blog2013 (10) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application No.204 of 2012 contending that one additional ground which arose out of the judgment of the Tribunal was inadvertently not raised. The appellant, therefore, prayed for recalling the earlier order dated 1.8.2012 dismissing the Tax Appeal. Such request was granted and the Misc. Civil Application was allowed on 11.1.2013. Therefore, this Tax Appeal has been placed before us for admission hearing afresh. Since the Revenue had not raised any question with respect to the findings and conclusions of this Court in the order dated 1.8.2012 dismissing the two questions which formed part of the Tax Appeal at the relevant time, we are not inclined to go into such questions all over again. Since the previous order was recalled by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed the view of the CIT(Appeals). The Tribunal also gave certain independent reasons while upholding the Commissioner's view that section 73 of the Act applies only in case of loss. To our mind, the Assessing Officer committed an error in resorting to explanation to section 73 of the Act. The issue before him was whether the income earned by the assessee through sale of shares should be taxed as business income or should be treated as capital gain. 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. Unfortunately, the Assessing Officer went completely in a wrong direction and relied on the expl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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