TMI Blog2018 (1) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... rmined 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 07/12/2011. Aggrieved, the assessee contested the same before this Tribunal vide ITA No. 1506/Mum/2012 order dated 02/03/2016 by raising two grounds of appeals viz. disallowance u/s 14A and treatment of certain Short Term Capital Gains under the head Business Income or Capital Gains. The Tribunal adjudicated the issue of disallowance u/s 14A in ITA No. 1506/Mum/2012 but omitted to adjudicate the second issue. Upon being pointed out vide MA 148/Mum/2016, the said omission was noted and the order was recalled to the limited extent of hearing the second ground on merits. Accordingly, the appeal is before us for re-adjudication with respect to second ground viz. treatment of certain Short Term Capital Gains under the head Business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to Ground No.2, the learned Counsel submitted that the gains arising out of sale of shares/units are treated as business income instead of short term capital gain. It was submitted that in the earlier years the assessee had suffered losses on the same account and the Assessing Officer treated as speculation loss by virtue of invoking the provisions of section 73 explanation (2) and therefore, the assessee has raised the additional ground that in case the amounts are treated as speculation business, the same is required to be set of to the losses determined by the Assessing Officer in the earlier years. He referred to the submissions before the Assessing Officer vide letter dated 25/02/2008, more so Item No.24 to submit that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the case of Lokmat Holdings 322 ITR 43 has considered the scope of section 73 Explanation (2) and therefore, in view of the jurisdictional High Court judgment the assessee s contention made before the Assessing Officer during the assessment should be allowed and if that is considered, there is no case for adjudicating the Ground No.2 as such. 15. We have considered the issue. The main dispute is with reference to treatment given to share transactions. Assessee treated them as investments where as AO treated them as Trading transactions. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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