TMI Blog2007 (11) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... loss of Rs. 10,86,472 by treating the same as speculation loss. (2) The learned CIT(A) erred in applying Explanation to s. 73 for disallowing the loss incurred by the appellant. 4. Briefly stated. the facts are that the assessee is a sub-broker of M/s Kantilal Mangaldas See (P) Ltd., one of the main brokers of the Bombay Stock Exchange. During this year, the assessee has earned net brokerage of Rs. 17,68,213. The assessee had also some share trading in its own account in which, it has incurred loss of Rs. 10,86,472 on delivery based share trading and Rs. 32,42,898 on non-delivery based share trading. Loss of Rs. 32,42,898 incurred by the assessee on non-delivery based share trading has been treated as speculation loss by the assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this issue is covered against the assessee by the judgment of Ahmedabad Special Bench of the Tribunal rendered in the case of AMP Spg. Wvg. Mills (P) Ltd. vs. ITO (2006) 101 TTJ (Ahd)(SB) 1113 : (2006) 100 ITD 142 (Ahd)(SB) wherein it was held that provisions of Explanation to s. 73 apply to all the transactions of purchases and sales of shares of the companies whose business consists of such purchases and sales of shares and the same cannot be restricted to only those transactions which are found to be a device for tax avoidance. 7. We have considered the rival submissions, perused the materials on record and have gone through the orders of authorities below and judgments cited by both sides. We find that this issue is squarely c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rajasthan State Warehousing Corporation vs. CIT (2000) 159 CTR (SC) 182 : (2000) 242 ITR 450 (5C) and on the Tribunal judgment rendered in the case of Dhanlakshmi Bank Ltd. vs. Asstt CIT (2007) 12 SOT 625 (Coch). 12. As against this, learned Departmental Representative of the Revenue supported the order of CIT passed by him under s. 263. 13. We have considered the rival submissions, perused the materials on record and have gone through the orders of authorities below and Judgements cited by learned Authorised Representative of the assessee. We find that it is noted by learned CIT in his order under s. 263 that the AO has treated loss of Rs. 10,86,472 from share trading business as speculation loss but the proportionate expenditure c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penditure is allowable. But, in the present case before us, the issue is not regarding invoking of s. 14A. Learned CIT has directed the AO to disallow proportionate expenses towards activity of share trading. It is the contention of the assessee that in the present case, learned CIT is substituting his opinion in place of the opinion of the AO, which is also a possible view and hence, order of learned CIT under s. 263 cannot be upheld. 15. Considering the facts of the present case in its entirety, we are of the considered opinion that the view taken by learned CIT is not correct because making apportionment of the administrative expenses incurred by the assessee in the ratio of total brokerage income of Rs. 17.68 lakhs and share trading l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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