TMI Blog2020 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... delay is not condoned. Speculation loss in the light of amended provisions of section 43(5)(d) - assessee entered into Futures and Options (F O) trading activities and earned loss and said loss was claimed as speculation loss and not claimed the same as business profits of the assessee - CIT assumed jurisdiction u/s 263 of the Act and passed an order directing the Assessing Officer to withdraw the said relief granted to the assessee - HELD THAT:- Fresh assessment orders were made by the Assessing Officer and the loss was treated as speculative loss denied the set off against the income of other heads. These facts are identical to that of the facts of Madhuri Kotecha [ 2019 (8) TMI 1469 - ITAT PUNE] case, who is spouse of the present assessee as mentioned that the provisions of section 43(5)(d) of the Act was amended and the said amendment is found to be operational prospectively useful to the assessee - we are of the opinion that these five appeals should be remanded to the file of the CIT(A) for fresh adjudication. CIT(A) is directed to comply with the order of the Tribunal in the case of Madhuri Kotecha (supra). The assessee is also directed to demonstrate the compara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the issue, merely respected the direction given by the CIT(A) to the Assessing Officer, who dutifully incorporated the fresh assessment order. Therefore, there is no adjudication of the issue on merits and the appeals of the assessee are dismissed. These orders were passed by the CIT(A) on 30.07.2018. 4. Before us, ld. Counsel for the assessee argued merely in favour of condonation of delay but in response to the query from the Bench what prevented steps took by the assessee for filing of the appeals before 22.05.2016, ld. Counsel, referring the revision proceedings and the orders thereof, relied heavily on the order of the CIT(A) for the assessment year 2006-07 and submitted that likely favourable relief given by the CIT(A) for this assessment year and further years under revision as well. 5. Per contra, ld. DR for the Revenue strongly contested the condonation issue and submitted that there is no reasonable cause for condoning such huge delay. In this regard, ld. DR relied heavily on the judgment of the Hon ble Bombay High Court in the case of Kolte Patil Developers Ltd and strongly opposed the condonation issue. 6. On hearing both the sides on this limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Aggrieved with the said treatment of the Assessing Officer, the Pr.CIT assumed jurisdiction u/s 263 of the Act and passed an order directing the Assessing Officer to withdraw the said relief granted to the assessee. Therefore, the fresh assessment orders were made by the Assessing Officer and the loss was treated as speculative loss denied the set off against the income of other heads. These facts are identical to that of the facts of Madhuri Kotecha (supra) s case, who is spouse of the present assessee. The ld. Counsel filed a copy of the order of the Tribunal in the case of Madhuri Kotecha (supra) and read out the grounds as well as the decision of the Tribunal which is in favour of the present assessee. The ld. Counsel mentioned that the contents of para 9 to 15 of the said order of the Tribunal in the case of Madhuri Kotecha (supra) are relevant in this regard. Referring to the said paragraphs of the order of the Tribunal (supra), ld. Counsel mentioned that the provisions of section 43(5)(d) of the Act was amended and the said amendment is found to be operational prospectively useful to the assessee. For the sake of completeness, the said para 9 to 15 of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pressed. 11. Referring to the grounds no.4, 5 and 6, ld. Counsel for the assessee submitted that the main issue raised in these grounds relates to the losses earned on trading activity of the Futures and Options (F O). For the year under consideration i.e. A.Y. 2007-08, the said losses constitute the business regular losses of and not speculative losses. Therefore, 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 decision of the Tribunal (supra) and the same are extracted hereunder :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not decided the issue on merits. He merely followed the directions of the Pr.CIT as per discussion given in para 3.1 of his order. For the sake of completeness, the said para 3.1 of the order of the CIT(A) is extracted hereunder :- 3.1 I have considered the materials placed before me. Brief facts are that original return of income was filed by the appellant on 31.10.2007 declaring total income of ₹ 73,29,971/-. In the original return filed the appellant claimed ₹ 72,02,258/- as loss from speculative business which was carried forward. Consequent to search action the AO passed order u/s 143(3) rws 153A on 27.03.2014 wherein the while computing the total income allowed set off of speculation loss of ₹ 72,02,258/- against income of other heads. The Pr. CIT(Central), Nagpur vide order passed u/s 263 dated 11.03.2016 set aside the order passed by the AO u/s 143(3) rws 153A holding that the AO erred in allowing set off of losses from speculation business which was neither claimed by the appellant in the return filed u/s 139(1) nor in return filed u/s 153A. Further, the set-off was not allowable as per provisions of Income Tax Act. Consequent to this err ..... X X X X Extracts X X X X X X X X Extracts X X X X
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