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Sanket Estate & Finance Ltd. Versus ACIT, Circle-8, Ahmedabad

Addition of speculation loss - nature of income - Held that:- There is not dispute about the fact that the assessee had already proved that its main income has already been treated to be under the head “income from other sources”. The Assessing Officer’s findings in assessment order as affirmed in the CIT(A)’s opinion deny application of above explanation in assessee’s case mainly on the ground that its statement of income is entirely under the head “ business income” . We reiterate that these t .....

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S. Godara, Judicial Member By Assessee : Shri Vijay Ranjan, A.R. By Revenue : Shri Vilas V. Shinde, Sr.D.R. ORDER Per S. S. Godara, Judicial Member This is a batch of four appeals. First assessment year 2001-02 involves three cases comprising of two quantum cross appeals ITA Nos.943 & 1256/Ahd/2005 filed by assessee and the Revenue against CIT(A)-XIV, Ahmedabad s order dated 02.02.2005 passed in case no. CIT(A)/XIV/ACIT C.8/56/2004-05. The latter party has further instituted ITA No.2735/Ahd .....

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) of the Act. We proceed assessment year-wise for the sake of convenience and brevity. Assessment Year 2001-02 2. This assessment year comprises of three appeals as clarified hereinabove in opening paragraph. Assessee s appeal ITA No.943/Ahd/2005 raises three substantive grounds inter alia pleading that the CIT(A) has erred in confirming Assessing Officer s action making Section 14A interest disallowance of ₹ 1,27,74,382/-, treating its loss of ₹ 1,20,741/- as speculation loss and fu .....

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al ITA No.1256/Ahd/2005 challenging correctness of the lower appellate order deleting Section 14A apportioned interest disallowance of ₹ 26,62,673/- out of the total disallowance figure of ₹ 1,54,37,055/-. Its latter appeal ITA No.2735/Ahd/2006 seeks to revive Section 271(1)(c) penalty of ₹ 27lacs imposed by the Assessing Officer vide order dated 07.03.2006 as pertaining to the above three quantum issues summarized in assessee s appeal hereinabove i.e. Section 14A disallowance, .....

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est expenses stated to have been incurred for earning exempt income by parking its funds in share activities. We find that the CIT(A) follows his order in assessee s own case for assessment year 1999-2000 as follows: I have carefully considered the assessment order and the above submissions. I have also perused the appellate order dt: 31-01-2003 for A.Y. 1999-2000 passed by the C.I.T (A) IX; Mumbai in appellants own case. I find that the assessee has been earning on business of trading in share. .....

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held that in respect of interest not connected with dividend income, sec. 14A would not be applicable and has accordingly confirmed the disallowance u/s. 14 A with reference to shares on which dividend is received. As the facts mentioned in A.Y. 1999-2000 are similar, the appellant was requested to furnish necessary details for the same, which were duly furnished. On a perusal of the same, I find the following facts:- Cost A List of shares which are purchased & sold during the year. Bajaj A .....

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old) 423,430 Gujarat Narmada Valley Fertilizers Ltd. 11,442 Nirma ltd. 9.576,900 Shree Rama Multitech Ltd. 125,760,881 The Royal Co. op. Bank Ltd. (sold) 15,000 DSQ Software Ltd. Total 815,000 Total 136,602,653 Total (A+B) on which dividend not received 25,302,180 Total (A+B+C) 1,61,904,833 Amount of interest for the year 17,038,044 Working of interest on which no dividend is received. 17038044 x 25302180/161904833 2,662,673 According to this working, it can be seen that interest of ₹ 26,6 .....

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9.2015 holding that Section 14A disallowance is not exigible since the assessee had made investments yielding the impugned exempt income in group companies for acquiring controlling interest. Ld. coordinate bench places reliance on case law CIT vs. Srishti Securities Pvt. Ltd. (2010) 321 ITR 498 (Bombay) as well as this tribunal s decision in M/s. Questar Investments Ltd. vs. ACIT in ITA No.6332/Mum/2004 and M/s. Interglobe Enterprises Pvt. Ltd. vs. DCIT ITA Nos. 1362 & 1032/Delhi/2013. The .....

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essee s second substantive ground assailing correctness of both the lower authorities order treating a sum of ₹ 1,20,741/- as speculative loss. The CIT(A) s findings under challenge discuss relevant facts as well as Assessing Officer s observations as under: 6. The next ground of appeal relates to addition ₹ 1,20,741/- on account of disallowance of speculation loss on sale of shares by invoking section 73 of the Act. The Assessing Officer has stated that the appellant's own fund .....

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on sale of shares and worked out the loss of Rs, 1,20,741/- which has been considered as trading loss from share trading activity and is disallowed as speculation loss u/s.73. He has stated that the assessee has itself show the entire income as business income, and. therefore, it is not She company whose total income is chargeable under the head Interest on securities", income from house property, capital gains and income front other sources. With reference to this disallowance the appella .....

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urther submitted that explanation enacts a deeming provision in respect of companies other than those being investment and finance companies. Hence such explanation has to be considered strictly, the explanation refers to the business which "consists of the purchase and sale of such shares". The words "consists of do restrict the scope only to the purchase and sale of share. This is because this words are not defined in the Income Tax Act and in the common parlance they did not co .....

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d that the Board has also explained that the said explanation covers the loss from shares trading only. The appellant also referred to the words "extent to which the business" and stated that it restricted to purchase and sale only. The appellant also referred to the- speculation transaction defined in section 43(5)and staled that it includes only transactions of purchase and sale of shares and thus, it is submitted that interest attributable to purchase and sale of share cannot be par .....

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ionate interest referable to share purchase and sale is justifiably added in computation of speculation loss. This ground of appeal is accordingly dismissed. 7. Shri Ranjan submits at the outset that the above extracted interest sum sought to be disallowed already forms part of Section 14A interest disallowance figure of ₹ 1,54,37,055/-. We don t find any force since the CIT(A) in his order extracted hereinabove already adjusts the remaining interest figure of ₹ 16,00,989/- out of gr .....

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sheet in page 32 of the paper book. His submission accordingly is that Section 73 explanation inserted in the Act w.e.f. 01.04.1997 itself exclude from operation of the main provision those companies whose gross total income consists mainly of income which is chargeable as income from other sources . It is thus contented that both the Assessing Officer as well as the CIT(A) have erred in applying the above explanation to Section 73 of the Act in its case. 8. Learned Departmental Representative .....

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ome . We reiterate that these two authorities have themselves treated the said receipts under the head income from other sources . There is thus no substantive reason for not treating the assessee as an entity covered by Section 73 explanation hereinabove in these peculiar facts and circumstances. We accordingly delete the impugned disallowance/addition of speculation loss of ₹ 1,20,741/-. The assessee succeeds in its second substantive ground. Its appeal ITA No.943/Ahd/2005 is partly acce .....

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ncome. Both the lower authorities treat the same to be income from other sources after holding that the correspondence transaction are between group entities with an intent to reduce tax liability. The very factum of the impugned payments being received is not an issue. We hold in these peculiar facts that this is neither a case of concealment nor furnishing of inaccurate particulars of income inviting Section 271(1)(c) penal action. We thus confirm CIT(A) s order under challenge. Revenue s appe .....

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findings denying maintenance expenses of ₹ 2,31,560/- in view of standard deduction already allowed u/s.24 of the Act. Learned counsel submits not to press for the third substantive ground keeping in mind smallness of the maintenance amount involved. The same is thus dismissed as not pressed. We now proceed to adjudicate the remaining substantive two issues. 12. Both parties are ad - idem in the course of hearing qua first substantive ground of Section 14A interest disallowance of ₹ .....

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w come to second substantive ground raising the issue of speculation loss hereinabove. There is no dispute that the assessee is a company engaged in construction and investment business activities. It raised tow loss claimed of ₹ 16,71,900/- and ₹ 94,42,003/- on sale of 17000 shares of M/s. Nirma Ltd. sold @ ₹ 465/- and due to reduction in the value of stop of shares; respectively. The Assessing Officer quoted Section 73 explanation for observing that former loss claimed had to .....

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It thus took into account assessee s interest paid qua unsecured loans of ₹ 1,20,18,610/- to compute proportional interest outgo to arrive at a figure of ₹ 7,66,152/- as pertaining to the above sum of ₹ 95,76,900/-. The Assessing Officer would add this amount to above stated figure of ₹ 16,71,900/- thereby arriving at a gross sum of ₹ 24,38,052/-. 14. This case file indicates that the Assessing Officer then proceeded to invoke Section 73 explanation. His view was t .....

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f the total income. He then adverted to assessee s computation claiming the impugned loss. The Assessing Officer invoked deeming fiction that the assessee was carrying out speculation business requiring it to prepare a separate P&L account. 15. The assessee appears to have filed its reply on 21.02.2005 inter alia pleading that Section 73 spoke of purchase and sale of shares only to object to disallowance of ₹ 7,66,152/- (supra), it claim to have purchased Nirma Shares as investment whi .....

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this resulted in disallowance of gross loss sum of ₹ 1,18,80,055/-. 17. The CIT(A) deals with the issue in the following manner: 4.1 Grounds No. 4, 5 & 6 are regarding treatment of a sum of ₹ 24,38,052/- as speculation loss by treating it as attributable to the sale of 17000 shares of Nirma Ltd. The A.O. has found that the assessee had shown loss of ₹ 16,17,900/p on sale of 17000 shares of Nirma Ltd. He further calculated the interest expenses attributable to the investmen .....

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eated as business loss. The AO. Was also not justified in calculating the interest cost amounting to ₹ 7,66,152/- and treating it as part of loss. After carefully considering the facts of the case and the submissions of the appellant. I find that the appellant's income from house property is ₹ 1,20,065/-. The rest of the income is from shares amounting to ₹ 19,31,140/- and interest received of ₹ 1,22,100/- Thus, explanation to sec. 73 is very much applicable to the ap .....

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T(A) has also held that explanation to sec. 73 is applicable to the appellant's case and similar grounds were rejected in earlier years, vide his order dt. 21-10-2004 for AY. 2001-02. 5. The ground No. 7 is regarding treating the sum of ₹ 94,42,003/- as speculation loss attributable to the reduction in market value of shares held by the assessee as stock in trade. The assessee claimed loss of ₹ 94,42,003/- due to reduction in market value of stock. The AO has held that explanatio .....

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out of shares held as stock in trade, whether due to sale or due to change in value of closing stock becomes speculation loss and the A.O. was justified in treating it as speculation loss. This ground is, therefore, rejected. During the appellate proceedings, the appellant made an alternative, submission that once it is taken as speculator loss, the income form share dealing amounting to ₹ 19,31,140/- should be set off against this loss as the profit from shares trading will also become a .....

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far as former claim is concerned. The assessee then submits qua latter claim that the impugned sum of loss amounting to ₹ 94,42,003/- has arisen on account of reduction in value of shares without any transaction involved at all. 19. Learned Departmental Representative strongly relied upon CIT(A) s finding extracted hereinabove on the impugned issue of speculation loss. 20. We have heard rival contentions. The assessee s case admittedly is that neither of the two losses arising from sale of .....

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ch applies legal maxim generalia specialibus non derogant in view of hon ble apex court s decision in Union of India vs. India Fisheries (P.) Ltd. (1965) 57 ITR 331 (SC). We deem it appropriate at this stage to reproduce the said findings on this issue reading as under: 12. We now come to assessee s plea that as to what will constitute speculation loss for the purpose of section 72 of the Act, will be governed by the provisions of section 43(5) of the Act. We may mention that as per provisions o .....

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73 of the Act, is to be governed by the definition contained in section 43(5), as read with section 28 (Explanation 2), of the Act. However, this proposition also proceeds on a fallacy i.e., that the definition under section 43(5) and definition under Explanation to section 73 are competing and mutually exclusive. In our considered view, however, definition of speculation loss, as given under Explanation to section 73, is supplementing and has application only in the cases of certain companies .....

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ion to this provision, in the cases of companies profits from a business, which fulfils the conditions specified under Explanation to section 73, are also required to be taken as profits from speculation business. In our considered view, therefore, there is no conflict in these two provisions, namely provisions of section 43(5) and of Explanation td section 73. As far as scope of Explanation to section 73 is concerned, it may be relevant to quote from the Central Board of Direct Taxes Circular N .....

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nt year and set-off against the speculation profits, if any, in that year, and so on. The Amending Act has added an Explanation to section 73 to provide that the business of purchase and sale or shares by companies which are not investment or banking companies or companies carrying on business of granting loans or advances will be treated on the same footing as a speculation business. Thus, in the case of aforesaid companies, the losses from share dealings will now be set-off only against profit .....

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eral provision, insofar as it is inconsistent with the special provisions, must be deemed not to apply". Therefore, provisions of section 73 are required to be read as proviso to section 72 and, to the extent carry forward of speculation losses is concerned, section 72 will not have application in the matter. In this view of the matter, we reject the contention that, for the purpose of section 72 of the Act, the question as to what will constitute speculation loss will be governed only by t .....

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ection 72. In fact, entire arguments proceed on the foundation that application of section 72 will have precedence over application of section 73 and once that basic foundation is found to be unsustainable in law, we see no substance in ingenious, but fallacious, arguments of the assessee. 14. We may also mention that Honble jurisdictional High Court, in the case of CIT v. Jayashree Charity Trust (1986) 159 ITR 280 (Cal) has inter alia observed that "to resolve this controversy, regard must .....

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iple expressed in the maxim, "ut res magis valeat quam pereat". Vide Courtis v. Stovin and in particular, the following observations of Fry, L.J., at page 519 : The only alternative construction offered to us would lead to this result, that the plain intention of the legislature had entirely failed by reason of a slight inexactitude in the language of the section. If we were to adopt this construction, we should be constructing the Act in order to defeat its object rather than with a v .....

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ion to section 73 has to be treated as otiose because, if this provision cannot be put into service for determining what is speculation loss for the purpose of carry forward and set off of losses, this provision cannot be put into service for any other purpose at all. This construction will, therefore, tantamount to obliterating the provision from the statute and will, accordingly, be clearly contrary to the principle of ut res magis valeat quam pereat approved by the Honble Supreme Court in Tej .....

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lue of shares held as closing stock and, therefore, the loss so suffered cannot be said to be loss on account of purchase and sale of shares within meanings of section 73. However, we find that there is nothing on record to substantiate the factual elements embedded in this proposition and this plea, being taken for the first time at this stage, seems to be a new twist to the assessee s case. On the contrary, there is a categorical and uncontroverted finding by the assessing officer that the ass .....

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#8377; 7,46,51,708. It is thus clear that the assessee s contention is contrary to the admitted facts on record. Learned counsel for the assessee has also not brought on record any material to substantiate the factual elements embedded in the proposition canvassed by him. 17. We are also of the considered view that even if the loss is only on account of fall in value of stock, it is still in the nature of loss incurred from that business. A careful perusal of Explanation to Section 73 indicates .....

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nciples and business practices. Unlike the definition under Section 43(5) which defines 'speculative transactions' per se, the deeming provisions of Explanation to Section 73 lay down the circumstances in which, and the extent to which, a business is to be deemed as 'speculation business'. The thrust of the provisions under Explanation to Section 73 is on the nature of 'business', rather than nature of 'transaction'. It is thus immaterial as to whether profit is, .....

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ter alia observed that, "...valuation of unsold stock at the end of an accounting period is a necessary part of the process of determining the trading results of that period, and can in no sense be regarded as source of such profits (or losses)". In this view of the matter, the loss on valuation of closing stock of shares, in the present case, cannot be treated any different than a normal trading loss; such a loss is, as is the settled legal position, an integral part of the loss on tr .....

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t with the observations of the learned assessing officer to the effect that the wordings of the statute are plain and simple and. as held by Hon ble Supreme Court in the case of Vegetable Products Ltd. (supra). If the language is plain, the fact that the consequence of giving effect to it may lead to some absurd results is not a factor to be taken into account in interpreting a provision. It is for the legislature to step in and remove the absurdity." We are also in considered agreement wit .....

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