2020 (4) TMI 164

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....0 to 168 4/PUN/2018 - Revision Order u/s 263 Preliminary Issue - Condonation of Delay of 884 days 3. Giving the background facts of the issue of condonation of delay, ld. Counsel for the assessee submitted that the regular assessment was made on 27.03.2014 and the revision order was made on 11.03.2016. The same was served on the assessee on 31.03.2016. However, the assessee filed the appeals against the revision order of the Pr.CIT dated 11.03.2016 before the Tribunal with the delay of 884 days on 23.10.2018. Otherwise, due date for filing of the appeal was 22.05.2016. Explaining the huge delay, ld. Counsel for the assessee brought our attention to the revised affidavit and submitted that the similar issue was the subject-matter of adjudication before the CIT(A) for the assessment year 2006-07 and the CIT(A) allowed the issue on merits i.e. the loss claim is whether allowable as a speculation loss or not; applicability of the amended provisions of section 43(5)(d) of the Act; and, allowability of such set off was called as 'business loss' against the 'business profits' of the assessee etc. The CIT(A) granted relief on this issue for the assessment year 2006-07 vide its order date....

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....A Nos.1675 to 1679/PUN/2018. 9. The only issue raised in these appeals relates to the nature of losses made by the assessee and the same constitutes a speculation loss or otherwise in the light of amended provisions of section 43(5)(d) of the Act. This is a common issue raised in all the five appeals for the assessment years under consideration. Giving background facts of the case, ld. Counsel mentioned that the similar issue came up for adjudication before the Tribunal in the case of Madhuri Kotecha vs. ACIT vide ITA Nos.484 & 498/PUN/2019 dated 21.08.2019. The facts of the issue include that the assessee entered into Futures and Options (F&O) trading activities and earned loss. The said loss was claimed as 'speculation loss' and not claimed the same as 'business profits' of the assessee. However, during the assessment proceedings, relying on the findings of the first appellate proceedings for the assessment year 2006-07 i.e. immediate preceding assessment year, where the CIT(A) held that the said loss is a 'non-speculative loss', the Assessing Officer granted similar treatment of such sales of trading activities and was considered the same as 'non-speculative loss' and granted ....

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....the disallowance of set off of losses of Rs. 94,26,738 incurred in the F & O Trading Activity against the regular business income earned by the assessee was not justified and the learned A.O. may be directed to allow set off of the losses of Rs. 94,26,738/- against the regular business income of the assessee. 5. The assessee submits that the losses from F & O Trading Activity were not speculative losses and the same were part of the regular business losses and accordingly, the losses from F & O Trading Activity should have been set off against the regular business income of the assessee. 6. The learned CIT(A) has erred by defying the squarely applicable Judgement of Jaipur ITAT which have been relied upon by the appellant & the Learned CIT(A) has erred by not considered the said Judgement & also not taking the said Judgement on record & has thus defied principles of natural justice. 7. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal." 10. Taking us through the above extracted grounds, ld. Counsel for the assessee submitted that the grounds no.1, 2, and 3 are not pressed. Accordingly, the same are dismissed as not pressed. 11.....

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...." 13. We further extract the conclusion of this decision of the Tribunal (supra) as under :- "Clause (d) inserted in proviso to sub-s. (5) of s. 43 by the Finance Act, 2005 w.e.f. 1st April, 2006 is retrospective in application; loss claimed by the assessee in derivative transaction is allowable as a business loss as the same is not covered by s. 43(5)." 14. Considering the above settled legal proposition of law on this issue and the retrospective amendment of clause (d) of section 43(5) of the Act, we are of the opinion that the CIT(A) erred in treating the same as speculative losses and, therefore, the decision of the CIT(A) requires to be set-aside. The said retrospective amendments allow the impugned losses as the business losses only. Accordingly, the relevant grounds no.4, 5 and 6 raised by the assessee are allowed. 15. In the result, the appeal of the assessee in ITA No.484/PUN/2019 is partly allowed." 11. On hearing both the sides, we find prima-facie the issue now stands covered in favour of the assessee. However, the facts are also similar with that of the Madhuri Kotecha (supra) case. Further, we find the CIT(A) has not decided the issue on merits. He merely fol....