2004 (12) TMI 310 - AT - Income Tax

Tribunal Rules Loan and Advance Business Exempt from Speculation Loss, Classifies Share Dealings Loss as Business Loss.

Deputy Commissioner Of Income-Tax. Versus Venkateswar Investment & Finance (P.) Ltd.

Deputy Commissioner Of Income-Tax. Versus Venkateswar Investment & Finance (P.) Ltd. - ITD 093, 177, TTJ 092, 1129, Issues Involved:1. Applicability of Explanation to section 73 of the Income-tax Act, 1961.2. Classification of loss from share dealing as business loss or speculation loss.3. Determination of principal business activity of the assessee.Summary:1. Applicability of Explanation to section 73 of the Income-tax Act, 1961:The primary issue was whether the loss in share dealing suffered by the assessee, which exceeded its income from other sources in the assessment year 1997-98, should be classified as speculation loss u/s 73 of the Income-tax Act. The Revenue argued that the Explanation to section 73 was applicable, treating the loss as speculative. The assessee contended that its principal business was granting loans and advances, thus falling under the exception provided in the Explanation to section 73.2. Classification of loss from share dealing as business loss or speculation loss:The Revenue contended that the loss of Rs. 51,28,005 from share dealings should be treated as speculation loss, citing various judicial precedents. The assessee argued that the loss should be considered a business loss, as the principal business was lending and advancing loans. The Tribunal emphasized that the Explanation to section 73, being a deeming provision, must be strictly construed. It concluded that merely because the share dealing loss was higher than the income from other sources, it does not change the principal business of the assessee from lending to share dealing.3. Determination of principal business activity of the assessee:The Tribunal examined the nature of the assessee's business activities, deployment of funds, and income sources over several years. It found that the principal business of the assessee was indeed granting loans and advances, supported by the Memorandum of Association and historical financial data. The Tribunal noted that the business of share dealing was initiated only in the relevant assessment year and was not the principal activity. It held that the principal business of the assessee remained the granting of loans and advances, thus falling under the exception to the Explanation to section 73.Conclusion:The Tribunal concluded that the principal business of the assessee was granting loans and advances, and therefore, the provisions of Explanation to section 73 were not applicable. The loss incurred in the business of purchase and sale of shares was to be treated as a business loss and not a speculation loss. The appeal of the Revenue was dismissed.