TMI Blog2018 (5) TMI 1839X X X X Extracts X X X X X X X X Extracts X X X X ..... nly to set off against Long term capital gain and accordingly confirmed the order of AO. Since the exception provided in provisions of sec. 43(5) is applicable to these transactions, we are of the view that there is merit in the claim of the assessee. Accordingly we direct the AO to assess loss arising from derivative transactions as business loss. Rejection of claim of set off of Long term capital gains and Income from other sources against the above said losses - HELD THAT:- In the instant case, we are of the view that the planning, if any, done by the assessee is within the framework of law. Accordingly we set aside the order passed by Ld CIT(A) on this issue and direct the AO to accept the short term capital loss arising from sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue and direct the AO to adopt Juhu Property as self occupied property of the assessee. - I.T.A. No. 5616/Mum/2015 - - - Dated:- 23-5-2018 - Shri B.R. Baskaran (AM) And Shri Pawan Singh (JM) For The Assessee : Shri K. Shivram And Shri Rahul Hakani For The Department : Shri Ashwin Kumar ORDER Per B.R. Baskaran (AM) :- The appeal filed by the assessee is directed against the order dated 03- 09-2015 passed by Ld CIT(A)-3, Mumbai and it relates to the assessment year 2011-12. The assessee is aggrieved by the decision rendered by Ld CIT(A) on the following issues:- (a) Loss from trading in derivatives treated as speculative loss instead of business loss. (b) Loss from trading in delivery based share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of sec. 43(5) at all and did not spell out as to how sec. 43(5) would not apply to the derivative transactions. We notice that the Ld CIT(A) has taken support of Explanation to sec 73, which is not applicable to Individuals. Hence we are unable to agree with the view taken by the tax authorities in respect of loss from derivative transactions. Since the exception provided in provisions of sec. 43(5) is applicable to these transactions, we are of the view that there is merit in the claim of the assessee. Accordingly we direct the AO to assess loss arising from derivative transactions as business loss. The order of Ld CIT(A) is set aside. 5. In respect of short term capital loss declared by the assessee, there is no disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be allowed against business income. Since the user of loan proceeds shall decide the allowability of the interest expenditure, we restore this issue to the file of the AO for examining it in accordance with the law. 8. The last issue relates to substitution of Self occupied property for the purpose of sec. 23 of the Act. The assessee was owning three house properties, viz., house located at Juhu, Santacruz (E) and Vasai. The assessee declared notional rental income from Santacruz property. In the return of income, the assessee declared Vasai property as self occupied property. However, before the AO, the assessee sought to substitute Juhu Property as self occupied property. The AO took the view that the change of self occupied prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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