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TMI Blog2018 (11) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... e following substantial question of law : "Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that the loss sustained in business can be set off against betting and gambling income and only the net income is to be taxed under Section 115BB ?" 3. The learned counsel appearing for the Revenue submits that an identical question was decided in the assessee's own case against the assessee in TCA.No.649 of 2006 dated 10.12.2014, which decision was followed by us in TCA.No.1328 of 2008 dated 05.9.2018. 4. The learned counsel appearing for the respondent/assessee does not dispute the said submission and would agree that the substantial question of law framed for consideration in this appeal was ans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals), as Section 115BB of the Act is a standalone special provision, which makes it clear that income of an assessee, not being income from activity of owning and maintaining race horses, would fall under Section 115BB of the Act. In view of the specific provision contained in Section 115BB of the Act under Chapter XII of the Act, which provides for determination of tax in certain special cases, the special rate of tax is applicable for the entire income of winnings from horse racing and should be subject to tax at the special rate provided therein. It is not the case of the assessee that the income being brought to tax is earned from owning and maintaining the horses. Therefore, in our considered opinion, the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders of the Commissioner (Appeals) on this issue". We are at a loss to understand as to how the Tribunal concurred with the decision of the Commissioner of Income Tax (Appeals), while making a diametrically opposite observation that Section 58(4) of the Act is not applicable. 15. We are, therefore, of the considered view that the total winnings from betting of the assessee should be brought to tax at the rate of 40% as contemplated under Section 115BB of the Act. The order passed by the Tribunal, which affirmed the order of the Commissioner of Income Tax (Appeals), is liable to be set aside. Accordingly, the order passed by the Tribunal is set aside. For the foregoing reasons, this appeal is allowed answering the question of law i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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