TMI Blog2001 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... e case for the opinion of this court: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding the view that the loss of Rs.11,79,420 was a short-term capital loss?" In compliance with our direction the aforesaid question has been referred for the opinion of this court. During the course of assessment, the Assessing Officer noticed that the assessee has claimed the short-term capital loss on account of share transactions. He rejected that claim. According to him, in the absence of the balance-sheets of the companies for which the loss could not be ascertained. In appeal before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) vide his order dated June 1, 1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roker's note was also not produced. Therefore, when the directions were not complied with in the second round, the Commissioner of Income-tax (Appeals) as well as the Tribunal should not allow the claim of short-term capital loss in share transactions. Dr. Pal, learned counsel for the assessee, submits that the assessee-company is not an investment company and whether Explanation to section 73 of the Act has any application has been considered by the Commissioner of Income-tax (Appeals), in the assessment year 1980-81 in the case of this very assessee and found that the Explanation to section 73 has no application in the case of this assessee. That order dated December 20, 1988, for the assessment year 1980-81 of the Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be denied on that very ground in the second round. That has not been done so also by the Commissioner of Income-tax (Appeals). In consequence of the direction of the Commissioner of Income-tax (Appeals) in the order dated June 1, 1983, the Assessing Officer instead of complying with those directions and considering the materials referred to in the order dated June 1, 1983, he rejected the claim of the assessee only on taking into account the Explanation to section 73 of the Act. The Commissioner of Income-tax (Appeals) has considered this issue and the Commissioner of Income-tax (Appeals) found that in the facts and circumstances, the Explanation to section 73 has no application, as the assessee is not an investment company. That orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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