TaxTMI 
TaxTMI 
2012 (9) TMI 1140
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....pellant u/s. 10(33) (a) on account of dividend income of Rs. 80,48,977/-. The Ld. Commissioner of Income Tax (A) has failed to appreciate that the dividend income is exempt u/s. 10 of the Income Tax Act, 1961 and the Assessing Officer was duty bound not to treat the said dividend income as taxable income. 2) The Ld. Commissioner of Income Tax (A) has erred in law and on facts in upholding the disallowance of business loss of 85,18,854/- by treating the same as speculation loss. 3) The Ld. Commissioner of Income Tax (A) has failed to appreciate that the appellant company is dealing in shares and they also have be brokerage income and the loss on sale purchase of units is a business loss and the provisions of explanation to ....
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....ssions filed in this regard. The matter was taken up to ITAT and the ITAT held as under:- "It is also noticed that while deciding Ground No. 2 of assessee's appeal directed against non-allowance of dividend income of Rs. 80,45,977/- as exempt u/s. 10(33), the learned C.I.T.(A) has ignored the certificate of registration stating that only a faint photocopy of the certificate is attached but nothing is legible. After considering the entire facts of the present case, we are of the view that the learned C.I.T.(A) has not given effective opportunity of being heard to the assessee before disposing of its appeal. In the case of Radhika Charan Banerjee vs. Sambhalpur Municipality, AIR 1979 Orissa 69, it has been held that "A right of appea....
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....observed as under:- "5. In view of the certificate of SEBI registering Sun F& C Mutual Fund with them, dividend income of Rs. 80,45,977/- is exempt u/s. 10(35)(a) (and not 10(33) as claimed by the assessee), the loss of Rs. 85,18,584/- from sale of units is also treated as business loss and not speculative loss since units of mutual funds is not "shares" and does not fall in the mischief of explanation to Section 73. The decision of Apex Court in Apollo Tyres Ltd. cited by assessee is not relevant as that was about purchase and sale of units of UTI; in the instant case it is sale of units of a mutual fund approved by SEBI. The computation of income filed by the assessee for the year under consideration alongwith original return was....
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....e effect of revising the return cannot be entertained and allowed by the Assessing Officer. It cannot be allowed at this stage of appeal proceeding also because the time for filing revised return was over and this claim being belated cannot be entertained. In support the decision of Supreme Court in Goetze India Ltd. vs. C.I.T. (2006) 284 ITR 323 is relied upon wherein they held that the Assessing Officer cannot entertain the claim for deduction otherwise than by filing the revised return. The set off of dividend income against loss on sale of shares cannot be allowed as no such claim was made in the original computation of income. The benefit of treating the dividend from mutual funds as exempt u/s. 10(35)(a) and carry forward of the loss ....