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TMI Blog2012 (9) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... d income of ₹ 80,48,977/-. The Ld. Commissioner of Income Tax (A) has failed to appreciate that the dividend income is exempt u/s. 10 of the Income Tax Act, 1961 and the Assessing Officer was duty bound not to treat the said dividend income as taxable income. 2) The Ld. Commissioner of Income Tax (A) has erred in law and on facts in upholding the disallowance of business loss of 85,18,854/- by treating the same as speculation loss. 3) The Ld. Commissioner of Income Tax (A) has failed to appreciate that the appellant company is dealing in shares and they also have be brokerage income and the loss on sale purchase of units is a business loss and the provisions of explanation to Section 73 are not applicable to the facts of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken up to ITAT and the ITAT held as under:- "It is also noticed that while deciding Ground No. 2 of assessee's appeal directed against non-allowance of dividend income of ₹ 80,45,977/- as exempt u/s. 10(33), the learned C.I.T.(A) has ignored the certificate of registration stating that only a faint photocopy of the certificate is attached but nothing is legible. After considering the entire facts of the present case, we are of the view that the learned C.I.T.(A) has not given effective opportunity of being heard to the assessee before disposing of its appeal. In the case of Radhika Charan Banerjee vs. Sambhalpur Municipality, AIR 1979 Orissa 69, it has been held that "A right of appeal wherever conferred includes a right of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate of SEBI registering Sun F& C Mutual Fund with them, dividend income of ₹ 80,45,977/- is exempt u/s. 10(35)(a) (and not 10(33) as claimed by the assessee), the loss of ₹ 85,18,584/- from sale of units is also treated as business loss and not speculative loss since units of mutual funds is not "shares" and does not fall in the mischief of explanation to Section 73. The decision of Apex Court in Apollo Tyres Ltd. cited by assessee is not relevant as that was about purchase and sale of units of UTI; in the instant case it is sale of units of a mutual fund approved by SEBI. The computation of income filed by the assessee for the year under consideration alongwith original return was as under:- Profit as per P&L A/c 7,82, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was over and this claim being belated cannot be entertained. In support the decision of Supreme Court in Goetze India Ltd. vs. C.I.T. (2006) 284 ITR 323 is relied upon wherein they held that the Assessing Officer cannot entertain the claim for deduction otherwise than by filing the revised return. The set off of dividend income against loss on sale of shares cannot be allowed as no such claim was made in the original computation of income. The benefit of treating the dividend from mutual funds as exempt u/s. 10(35)(a) and carry forward of the loss of ₹ 78,73,066.49 on shares is not being agreed to as these claims were not made in the original return or by filing revised return within the time allowed u/s. 139(5)." 6. Against the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961. We further find that Hon'ble Apex Court in the case of CIT Vs. Mr. P. Firm in 56 ITR 67 wherein the Bench comprised three of their Lordships had expounded that if a particular income is not taxable under IT Act, it cannot be taxed on the basis of estoppel of any other equitable doctrine. Further, if a particular income is not exigible to tax, Assessing Officer has no power to impose tax on the said income. We further find that Article 265 of the Constitution of India states that no tax can be collected except by authority of law. CBDT Circular No. 114 XL-35 of 1955 dated 11.4.1955 states that officer of the department must not take advantage of the ignorance of an assessee as to his rights. 9. In view of the aforesaid discussions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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