AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (2) TMI 1483
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....llant. 2.The Ld. Commissioner of Income-tax (Appeals) has erred in Law and in facts in confirming the disallowance of Rs. 1,95,57,742/- on account of toss from stock market activity claimed as set off against the profit from money market activity. 3.The Ld. Commissioner of Income-tax (Appeals) has erred in law and in facts in confirming the disallowance of Rs. 2,50,000/- paid towards maintenance of the account. 4.The Ld. Commissioner of Income-tax (Appeals) has erred in law and in facts in conf irming the disallowance on account of depreciation amounting to Rs. 2,25,000/-. 5.The Ld. Commissioner of Income-tax (Appeals) ought to have appreciated that the appellant was entitled to deduction on account of interest payable to the brokerage firms. 6.The Ld. Commissioner of Income Tax (Appeals) has erred in law and in facts in not appreciating the interest charged u/s 234A, 234B and 234C of the Act are incorrect. 7. the Ld. Commissioner of Income Tax(Appeals) has erred in law and in facts in not appreciating that the income assessed in the hands of the appellant were subjected to the provisions of TDS and hence on the said amount of tax, no interest can be computed u/s. 234B ....
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....TR 274 wherein it was held that buying and selling of units by the assessee company could not be treated as speculative business. He requested for upholding the orders of the lower authorities. 3.5. In rejoinder, Ld. Counsel of the assessee submitted that judgment of Hon'ble Supreme Court in the case of Apollo Tyres Limited (supra) was not applicable on the facts of this case. In the said judgment, Hon'ble Supreme Court had examined the scope of section 73 which talks about 'shares' only whereas the assessee is seeking to claim the benefit u/s 43(5) of the Act, which talks about 'shares' as well as 'units'. He placed reliance upone judgment of Delhi Bench of the Tribunal in the case of ANZ Grindlays Bank v. Dy. CIT (Delhi) 88 ITD 53 wherein it was held that transactions of the purchase and sale of units and the Government Securities by the assessee without actually delivery would fall within the scope of speculative transactions as defined in section 43(5) of the Act. It was submitted that Hon'ble Delhi Bench has delivered its judgments after taking into account the judgment of Hon'ble Supreme Court in the case of Appollo Tyres Ltd. (supra). 3.6. We have gone through the orders p....
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....in that definition before the amendment. As observed by the Supreme court in its judgment in the case of R13! Vs. Peerless General Finance and Investment Co. Ltd AIR 1987 SC 1023 that the Legislatures resort to inclusive def ini tions also to bring under one nomenclature al l transactions possessing certain similar features but going under different names. Depending on the context, in the process of enlarging, the definition may even become exhaustive. In my opinion, therefore; the word "include" is used in Section 2(h), in truth and substance, to give exhaustive definition of the term "securities" for the purpose of Securities Contract Act. Therefore, as on the relevant date the units of the Mutual Funds which was the subject matter of the ready forward transaction between the parties was not securities within the meaning of the Securities Contract Regulation Act, the transaction was not hit by the notification issued by the Central Government under Section 16 and therefore, the transaction cannot be said to be an illegal transaction as it was not prohibited by the Securities Contract Regulation Act. Issues Nos. 4 & 5 are, therefore, answered accordingly." 5.6 Thus, the Special ....
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....se of units and government securities by the assessee through a broker without exchange of actual delivery would fall within the scope of speculative transactions as defined in section 43(5). Therefore, loss/profit from shares market transactions can very well be set off/adjusted against loss/profit of money market transactions. This issue has already been decided in favour of the assessee by the Tribunal in the case of group company of the assessee namely M/s. Growmore Leasing Investment (supra) as discussed above also. No distinction has been pointed out on facts or legal position by the Ld. Special Counsel of the Revenue, therefore respectfully following the order of the Tribunal in the case of M/s. Growmore Leasing Investment (supra) as well as ANZ Grindlays Bank v. DCIT (supra), we find that the claim of the assessee is allowable. Therefore disallowance made by the AO is directed to be deleted. Thus, ground no.2 is allowed. 4. Ground No.3: In this ground, the assessee is aggrieved with the action of lower authorities in making towards maintenance of accounts. 4.1. The brief background is that this disallowance was made by the lower authorities on the ground that the assessee....
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....d on this score by observing as under: "Regarding depreciation on computer system, the appellant has filed copy of receipt dated 31.3.90 issues by ADM Ltd. for payment of Rs. 2,02,500/- on 31.3.90 by the appellant, as advance payment for purchase of IDM SUMMIT Multi user UNIX System & Informix Software and Delivery Challan dated 31.3.90, evidencing the delivery of the system before the end of the previous year. It would appear from the above that the appellant had placed order for computer system on 31.3.90 for which advance payment was made and the delivery of the System was affected on 31.3.90. In view of the above, there is no reason to reject the claim for depreciation on the computer. The appellant is, therefore, entitled to allowance of depreciation of the computer." 5.4. It is noted that genuineness of the transaction has not been doubted and installation of the computer has also not been doubted. The relief has been granted by the Ld. CIT(A) in the first round which has not been endorsed by the Ld. CIT(A) in the second round. 5.5. We agree with the Ld. CIT(A) in the order given in the first round that there was no reason to deny claim of depreciation on the computer. Af....
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.... made on law and facts. Therefore, respectfully following the aforesaid order, we send this issue back to the file of Ld. CIT(A) for fresh adjudication after giving adequate opportunity of being heard to the assessee. Ld. CIT(A) shall follow the directions as have been given in the aforesaid order. This ground may be treated as allowed for statistical purposes. 7. Ground No.6 & 7: These grounds deal with the levy for interest u/s 234A, 234B, 234C of the Act. 7.1. During the course of hearing, prayer made by the Ld. counsel of assessee was that levy of interest is mandatory but computation of the same needs to be done properly as per law and facts of this case. In the orders passed by the Tribunal earlier, this issue has been sent back to the file of the AO for proper computation. We find force in the prayer made by the Ld. counsel and accordingly hold that levy of interest is consequential u/s 234A, 234B and 234C; but restore this issue back to the file of the AO for computing the interest after giving credit of amount of TDS and AO shall follow the directions as have been given by the Tribunal in the case of group company namely M/s. Harsh Estates Pvt. Ltd. v. ACIT (ITA No.1035/....