2003 (8) TMI 544 - AT - Income Tax

Tribunal Reverses Decision: Share Trading Deemed Speculative, Losses Treated as Speculation; Expense Allocation Reevaluated.

Deputy Commissioner of Income-Tax Versus Aakrosh Investment & Leasing (P.) Ltd.

Deputy Commissioner of Income-Tax Versus Aakrosh Investment & Leasing (P.) Ltd. - [2004] 90 ITD 287 Issues Involved:1. Applicability of Section 73 and Explanation thereto.2. Restriction of expenses on earning dividend income.Summary:Issue 1: Applicability of Section 73 and Explanation theretoThe revenue challenged the CIT(A)'s decision that the provision of section 73 read with Explanation thereto was not applicable to the assessee company, and the set-off of losses incurred in the business of purchase and sale of shares against other income was allowed. The CIT(A) had deleted several disallowances made by the Assessing Officer, including interest and management fees, and treated the business loss as not speculative since the gross total income consisted mainly of income from other sources.The Tribunal examined the facts and found that the assessee was engaged in the business of purchase and sale of shares, and the shares were treated as stock-in-trade. The Tribunal referenced the decision in CIT v. Sun Distributors & Mining Co. Ltd., which held that section 73 applies if the business consists of purchase and sale of shares, regardless of whether both activities occur in the same year. The Tribunal concluded that the assessee's business fell within the mischief of Explanation to section 73, as the primary activity was the purchase and sale of shares, and the gross total income did not consist mainly of income from the excluded categories. Therefore, the loss from trading in shares was to be treated as speculation loss, reversing the CIT(A)'s findings.Issue 2: Restriction of expenses on earning dividend incomeThe Assessing Officer had apportioned total expenses, including interest, to determine the expenses attributable to earning dividend income, which was significantly higher than the amount claimed by the assessee. The CIT(A) had directed to restrict the expenses to 1% of the dividend income.The Tribunal found that the CIT(A) had not examined the issue correctly considering the nature of the assessee's business. The matter was set aside and remanded back to the CIT(A) for fresh consideration, taking into account relevant judicial decisions and allowing reasonable opportunity for hearing.Conclusion:The appeal was treated as allowed for statistical purposes, with the Tribunal reversing the CIT(A)'s decision on the applicability of section 73 and remanding the issue of expenses on earning dividend income back to the CIT(A) for reconsideration.