TaxTMI 
TaxTMI 
2008 (10) TMI 17
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....l/2006 pertaining to assessment year 1995-96. 1.1 The only issue which arises for consideration is whether the assessee should be permitted to set off brought forward losses amounting to Rs.50,95,247/-, in respect of, sale and purchase of shares, pertaining to assessment years 1994-95 against income of assessment year 1995-96 assessed at Rs.33,20,000/- under Section 144 of the Act by the Assessing Officer. 1.2 The Assessing Officer vide assessment order dated 21.3. 2005, passed on remand, has disallowed the set off on the ground that the income earned by the assessee in assessment year 1995-96 is income in the nature of business income arising from sale and purchase of shares, as against, income from speculation. In appeal....
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.... the assessment order observed that the facts of assessment year 1995-96 were similar to 1994-95. The Tribunal even while making the said observations vide its order dated 9.6.2003 issued following directions to the Assessing Officer:-"The AO added that the assessee had not brought anything on record to show that his income of assessment year 1995-96 was for speculation. In this connection it is noted from the submissions made before the ld. CIT(A) that the books of accounts for the period upto July, 1995 were lying with the Department and in the absence of the same the assessee could not furnish the details required by the AO in the course of the assessment proceedings. The AO also did not examine the books of account suo moto to find out ....
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....d the Revenue contended that it had produced all such books for inspection of the assessee, which were, in their custody. The Revenue further contended that they had books available only for the period up to the date of the search i.e., 25.7.1994 and, therefore, they could not be asked to produce books for the latter part of the accounting year. 3. After recording the course of events and the submissions of the assessee, the Assessing Officer vide order dated 21.3.2005 disallowed the set off of brought forward losses. In the said order the Assessing Officer noted the fact, that, in the assessment year 1994-95, that is, assessment year immediately preceding the year under consideration, the assessee's income had been tre....
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....is to be c/f for set off against speculation income. The assessee has not brought anything on record to show that his income during the year is from speculation. Therefore, b/f speculation loss cannot be set off against current year's business income as the assessee has not brought anything on record to show that the income of the current year is from speculation. The facts are similar as in the assessment year 1994-95." 4.1. The Tribunal, similarly, in paragraph 8 of the impugned judgment also noted the fact that in the earlier round it had by an order dated 09^th June, 2003, a reference to which is made hereinabove, directed the Assessing Officer to examine the books of accounts of the assessee available with him to determine the 'natu....
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....t off of brought forward losses with current year's income, i.e., assessment year 1995-96, returned a finding that the facts of the year under consideration i.e., assessment year 1995-96 were similar to those of assessment year 1994-95. In view of this patent contradiction, and given the fact, that the Assessing Officer had failed to examine the books of accounts which were in his custody, so as to ascertain the nature and source of the income of the assessee ---- the Tribunal remanded the matter to the Assessing Officer. Instead of repairing the damage, the Assessing Officer in the second round, continued in the same vein; he once again failed to examine the books of accounts even though so directed by remand order. The Assessing Officer m....