Case Law Details
RELEVANT PARAGRAPH
9. We have considered the rival submissions and perused the record of the case. The facts are not disputed. Admittedly, the assessee company was dealing in Cement and also engaged in the business of dealing in shares. There is no dispute over the fact that the assessee had taken delivery of shares before selling them. The assessee company had claimed set off of unabsorbed speculation loss relating to assessment year 1995-96 and 1997-98 carried forward in the current assessment year 2003-04. The carried forward loss was denied by the department on the ground that the profits earned from sale of shares could not be treated as speculation profits because delivery of shares had been taken by the assessee. In the backdrop of these facts, .the moot point for consideration is whether Explanation to Section 73 would be applicable to cases where the assessee company, whose business consists of dealing in shares, has taken delivery of shares or not? In order to consider this issue, we may first refer to various relevant statutory provisions:
(i) Explanation to Section 28 which deals with scope of ‘profits and gains of business or profession1. This explanation reads as under:-
“Where speculative transactions carried on by an assessee are of such a nature as to constitute a business the business (hereinafter referred to as ‘speculation business”” shall be deemed to be distinct and separate from any other business.”
(ii) The speculative transaction has been defined in Section 43 sub-section (5) as under:-
Please become a Premium member. If you are already a Premium member, login here to access the full content.
