TMI Blog2020 (4) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee is for the A.Y. 2009-10, therefore, this amendment is not applicable and thus the claim for set off of shares business loss is available to the assessee as benefit provided u/s.71 of the Act may not simply be denied on the ground that the assessee was not able to substantiate his claim for classification under certain head of income. In our view, even if that claim is not substantiated, even then the income can be classified under any other head i.e. the income from other sources and benefit u/s.71 of the Act is also allowable. Therefore, keeping in view of the totality of the facts and circumstances as discussed above and also keeping in view of the decisions as mentioned above, we allow the claim of the assessee for set off of shares business loss against the undisclosed income for the year under consideration, accordingly solitary ground raised by the assessee are allowed. - I.T.A No.1535, 1536 And 1537 /AHD/2017 - - - Dated:- 14-2-2020 - Shri Sandeep Gosain, Hon'ble Judicial Member And Shri O.P. Meena, Hon'ble Accountant Member For the Assessee : Shri P.M.Jagasheth CA For the Revenue : Mrs. Anupam Singla Sr.DR ORDER PER SANDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this ground no.1 stands dismissed as not pressed. 7. Ground No.2: This ground raised by the assessee relates to challenging the order of the ld.CIT(A) in confirming the action of the ld.Assessing Officer(AO) in making addition of ₹ 11,11,080/- on account of disallowance of set off of loss shares F O against undisclosed income declared by DDIT, Investigation, Surat. From the records, we noticed that the appeal of the assessee was dismissed by the ld.CIT(A) on the solidary ground that the same was not within limitations and assessee had no sufficient cause for filing the appeal in time. In this respect, the ld.Authorised Representative(AR) drawn our attention to the documents placed on record which is in the shape of affidavit filed by the Rajesh Popatbhai Gabani, S/o.Popatbhai Dhanjibhai Gabani. In this affidavit, it has specifically been mentioned that assessee had studied up to the 8th standard and had some medical emergency during the month of April and May 2014, thus the assessment order received by him was left without any recourse at the end of the assessee. It was further submitted that when the assessee received the notice of penalty, then he contacted his tax c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be condoned and the appeal should be treated as filed with the allowed time. 10. On the other hand, the ld.Departmental Representative (DR) relied upon the orders of Revenue Authorities. 11. We have heard both the Counsels and perused the material placed on records, judgments cited by the parties as well as orders passed by the Revenue Authorities. From the records, we noticed that the assessee had total undisclosed income of ₹ 60,28,325/-. It was decided in three assessment years and the said undisclosed income was in the nature of investment made in shares future and options trading business. We also noticed that on the above undisclosed income, assessee paid tax of ₹ 18,10,000/- on 17.03.2012, in this respect, challans have been submitted by the assessee. The investments in shares future and option and share trading business had resulted in loss of ₹ 59,64,585/- the details of which have already been given by the assessee in the table in the page no.5 of the order of the ld.AO. While filing the Return of Income, the assessee has shown undisclosed income, under the head Business Income has provided u/s.14 of the Income Tax Act against which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinct tax levied separately on each heads of income and it is not an aggregate of various taxes computed with reference to each of the different source separately. There is only one assessment and the same is made after the total income has been ascertained. The assessee is subject to income-tax on his total income though his income under each head may8 be well below the taxable limit. Hence the loss sustained in any year under any heads of income will have to be set off against income under any other head. In this case, the Assessing officer made addition of ₹ 28,50,000/- as undisclosed income under Section 69 of the Act. Once the loss is determined, the same should be set off against the income determined under any other head of income. The benefit provided under Section 71 of the Act cannot be denied .. 14. We have also considered the decision of Hon'ble Gujarat High Court in para no.11 and page 7 of the order of ld.AO has held as under: . .................... The decisions of this court in the case of Fakir Mohmed Haji Hasan [2001] 247 ITR 290 (Guj.) Krishna Textiles [2009] 310 ITR 227 (Guj.) are neither relevant nor germane to the issue consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the case of Fakir Mohmed Haji Hasan as explained in the case of Deputy Commissioner of Income- tax vs. Radhe Developers India Ltd., the same cannot be declined 16. We have also considered the administrative instructions for guidance of Income Tax Officers on the matters pertaining to the assessment and also Circular No.11/2019, wherein it has categorically been held as under: 4. Thus keeping the legislative intent behind amendment in section 115BBE(2) vide the Finance Act, 2016 to remove any ambiguity of interpretation, the Board is of the view that since the term or set off of any loss was specifically inserted only vide the Finance Act 2016, w.e.f 01.04.2017, an assessee is entitled to claim set-off of loss against income determined under section 115BBE of the Act till the assessment year 2016-17. 17. Thus, keeping in view of the amendment, we are of the view as no claim shall be available for any allowances or expenditure of income referred to any section 68, section 69, section 69A, section 69B, section 69C and section 69D from A.Y. 2013-14 onwards. This amendment being prospective and not retrospective and since the claim raised by the assessee is f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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