TMI Blog2019 (8) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act, we are of the opinion that the CIT(A) erred in treating the same as speculative losses and, therefore, the decision of the CIT(A) requires to be set-aside. The said retrospective amendments allow the impugned losses as the business losses only. Accordingly, the relevant grounds raised by the assessee are allowed. - ITA Nos. 484 & 498/PUN/2019 - - - Dated:- 21-8-2019 - SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM For the Assessee : Shri Harikrishan For the Revenue : Shri N. Ashok Babu ORDER PER D. KARUNAKARA RAO, AM: There are two appeals under consideration by the assessee involving the assessment year 2007-08. ITA No.498/PUN/2019 Revision Order u/s 263 of the Act 2. This appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had directed the A.O. to pass a fresh order and therefore, the assessee was justified in agitating the disallowance made by the learned A.O. in the order passed u/s 143(3) r.w.s. 263 and accordingly, the learned CIT(A) should have decided the appeal on merits. 3. The learned CIT(A) ought to have appreciated that in the order passed u/s 263 by the learned Pr. CIT(C), she had not given any direction to the learned A.O. for making any specific addition/ disallowance and on the contrary, the asst. order was set aside with the direction to the A.O. to pass a fresh order and therefore, the learned CIT(A) erred in not adjudicating the issue on merits. 4. The assessee submits that the disallowance of set off of losses of ₹ 94,26,738 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the said losses eligible for set up against the regular business income of the assessee. In this regard, ld. AR relied on the various decisions including the decision of Jaipur Bench of the Tribunal in the case of P. S. Kapur vs. ACIT, 120 TTJ 0422 (Jaipur-Trib.). Referring to the contents of para 12 of the said decision of the Tribunal (supra), ld. Counsel submitted that the year under consideration by the Tribunal is the assessment year 2004-05 and the losses from such futures and options were considered as normal business losses in view of the prospective amendment to section 43(5)(d) of the Finance Act, 2005 w.e.f. 01.04.2006. 12. On hearing both the sides, we find it relevant to extract the said para 12 of the aforesaid dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; loss claimed by the assessee in derivative transaction is allowable as a business loss as the same is not covered by s. 43(5). 14. Considering the above settled legal proposition of law on this issue and the retrospective amendment of clause (d) of section 43(5) of the Act, we are of the opinion that the CIT(A) erred in treating the same as speculative losses and, therefore, the decision of the CIT(A) requires to be set-aside. The said retrospective amendments allow the impugned losses as the business losses only. Accordingly, the relevant grounds no.4, 5 and 6 raised by the assessee are allowed. 15. In the result, the appeal of the assessee in ITA No.484/PUN/2019 is partly allowed. 16. To sum up, the appeal of the assessee in I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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