TMI Blog2018 (6) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to section 43(5) and not speculation loss and, accordingly Explanation to section 73 could not be applied - the “loss (on account of sale of derivatives) would be allowed to be set off against income arising out of proper business because derivatives were treated differently within meaning of Explanation to section 73(4) and not at par with the shares” - Decided in favour of assessee - ITA No.2237/Ahd/2014 - - - Dated:- 18-6-2018 - Pramod Kumar AM And Mahavir Prasad JM For The Appellant : V.K. Singh For The Respondent : Mehul K. Patel ORDER Per Pramod Kumar, AM: 1. By way of this appeal, the Assessing Officer has challenged correctness of the ld. CIT(A) s order dated 27th May, 2014 in the matter of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the grievance raised by the appellant Assessing Officer thus ceases to have a legally sustainable basis. There is no contrary decision, or any other binding judicial precedent, from Hon ble jurisdictional High Court. 3. In all fairness, however, it is also noticed, from the text of Hon ble Calcutta High Court s judgment in the case of Asian Financial Services (supra) itself, that Hon ble Delhi High Court had taken a different view on this matter and decided the same, in principle, against the assessee. There are thus conflicting legal views of Hon ble nonjurisdictional High Court and that, beyond any dispute or controversy, there is no judicial precedents are available from Hon ble jurisdictional High Court. We have noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause or permit your imagination to boggle when it comes to inevitable corollaries of that state of affairs , Hon ble Gauhati High Court has held that there is no statutory exception excluding the operations of section 115J of the Act. Hon ble Karnataka High Court, on the other hand, has held that the words for the purposes of this section in Explanation to section 115J(1A) are relevant and cannot be construed to extend beyond the computation of liability to tax. In the opinion of the Hon ble Karnataka High Court, when a deeming fiction is brought under the statute, it is to be carried to its logical conclusions but without creating further deeming fiction so as to include other provisions of the Act which are not made specifically appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respective viewpoints as such an exercise will de facto amount to sitting in judgment over the views of the High Courts something diametrically opposed to the very basic principles of hierarchical judicial system. We have to, with our highest respect of both the Hon ble High Courts, adopt an objective criterion for deciding as to which of the Hon ble High Court should be followed by us. 8. We find guidance from the judgment of Hon ble Supreme Court in the matter of CIT v. Vegetable Products Ltd. [1973] CTR (SC) 177 : [1972] 88 ITR 192 (SC) Hon ble Supreme Court has laid down a principle that if two reasonable constructions of a taxing provision are possible, that construction which favours the assessee must be adopted. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s New Chirmiry Ponri Hill Colliery Co. Ltd. AIR 1972 (SC) 614. Therefore, what follows is that in the peculiar circumstances of the case and looking to the nature of the provisions with which we are presently concerned, the view expressed by the Hon ble Karnataka High Court in the case of Kwality Biscuits Ltd. case (supra), which is in favour of assessee, deserves to be followed by us. We, therefore, order the deletion of interest under sections 234B and 234C in this case. 5. In view of the above discussion, quite clearly, even when the decision of Hon ble non-jurisdictional High Courts are in conflict with each other, the only objective criteria which followed by us is to take a view favourable to the assessee. Hon ble Calcutta High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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