HIGH COURT OF BOMBAY
Commissioner of Income-tax
V/s.
HSBC Securities & Capital Markets India (P.) Ltd.
IT APPEAL NO. 657 OF 2007†
JUNE 12, 2012
ORDER
1. This is an appeal under section 260-A of the Income Tax Act against the order of the Income Tax Appellate Tribunal (ITAT) dated 14.7.2005 partly allowing the respondent’s appeal against the order of the CIT(A)/XXII. The matter pertains to the assessment year 1997-1998.
2. The appellant seeks to raise the following question as a substantive question of law :-
“Whether on the facts and in the circumstances of the case and in law the Hon’ble I.T.A.T. was justified in holding the trading loss of Rs. 84,51,000/- as Ordinary Business Loss as against Speculation Loss as held by the Assessing Officer by relying on the decision of the ITAT Delhi bench in the case of Aman Portfolio Pvt. Ltd. 93 ITD 324 ignoring the decision of the Divisional Bench of ITAT Delhi in the case of Frontline Capital Services Ltd. 96 TTJ 201 and also the decision of the ITAT Delhi Bench in the case of Rohini Capital Services Ltd. 92 ITD 317 while deciding that the Explanation to Sec. 73 of the Income-Tax Act, 1961 cannot be invoked in the case of the assessee ?”
3. It is not necessary for us to consider the submissions based on section 73, as raised, as the matter is covered in favour of the respondent on another aspect of section 73 by the judgment of a Division Bench of this Court dated 2.2.2012, to which one of us (M.S. Sanklecha, J. was a party) in the case of CIT v. Darshan Securities (P.) Ltd. [2012] 206 Taxman 68/18 taxmann.com 142.
4. On 1.12.1997, the respondent filed its return for the assessment year 1997-1998 declaring a total loss of Rs. 1,95,12,651/-. On 12.3.1998, the respondent filed a revised return declaring a total loss of Rs. 1,24,92,940/-. In the revised return, the assessee showed loss of Rs. 1,65,29,711/- arising out of the purchase and loss of shares.
The AO by an assessment order dated 29.3.2000 under section 143(3) inter alia recorded as under:-
“The assessee’s gross total income as per the second revised return was loss of Rs. 1,65,29,711/-. The composition of the same is as under :-
