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The ITO 25(2)(2), C-11 Bldg.,Pratyakshkar Bhavan,Bandra Kurla Complex,Bandra (E),Mumbai-400,051 Vs. Shri Pradeepkumar Babulal Solanki, Shop No.2, Santok Chawal, Main Carter Road, Borivali(E), Mumbai-400,066
January, 23rd 2015
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             ./I.T.A. No. 5705/Mum/2013
            ( [ [ / Assessment Year : 2008-09

The ITO 25(2)(2),     / Shri Pradeepkumar Babulal
C-11 Bldg.,                Solanki,
Pratyakshkar Bhavan,       Shop No.2, Santok Chawal,
Bandra Kurla Complex,      Main Carter Road,
Bandra (E),                Borivali(E),
Mumbai-400,051             Mumbai-400,066
    . /   . / PAN/GIR No. : AAHPS 7241L
    ( /Appellant)     ..       (× / Respondent)
      / Appellant by:                    Shri Akhilendra Yadav
    ×   /Respondent by:                     Shri K. Shivaram

            / Date of Hearing                           :22.01.2015
             /Date of Pronouncement :22.01.2015

                            / O R D E R


     This appeal by the Revenue is directed against the order of the Ld.
CIT(A)-35, Mumbai dt.18.7.2013 pertaining to A.Y.2008-09.
                                     2                     ITA No. 5705/M/2013

2.    The sole grievance of the Revenue is that the Ld. CIT(A) erred in
allowing speculation loss of Rs. 19,39,543/- .

3.    Briefly stated the facts of the case are that in the first round of
litigation, assessee's claim of loss of Rs. 19,39,543/- was denied by the
AO vide assessment order dt. 16.12.2010 made u/s. 143(3) of the Act.
The main reason for denying the claim of loss was that the assessee had
not claimed the same in his return of income, the same was claimed in the
revised   computation    of   income      without   furnishing   supporting
documentary evidences. The matter travelled upto the Tribunal and the
Tribunal in ITA No. 3511/M/2011 restored the matter to the file of the
AO to decide the issue afresh in the light of the documents as may be
filed by the assessee before him.        Pursuant to the directions of the
Tribunal, the assessee filed related documents in the second round of
litigation. However, once again the AO denied the claim of loss as the
same was not claimed in the original return of Income. The AO relied
upon the decision of the Hon'ble Supreme Court in the case of Goetze
(India) Ltd. Vs CIT 284 ITR 323.

4.    Aggrieved, assessee carried the matter before the Ld. CIT(A).
Before the Ld. CIT(A), it was strongly contended that the assessee has
filed all the necessary evidences in support of the claim of the loss of Rs.
19,39,543/-. It was pointed out to the Ld. CIT(A) that the loss from
Futures & Options is not speculative in nature and can be claimed as a
set off against income from other sources.          The Ld. CIT(A) after
considering the facts and the submissions was convinced that the F&O
transactions are squarely covered by the proviso to Sec. 43(5) of the Act.
The Ld. CIT(A) further held that the ratio of the decision of the Hon'ble
Supreme Court is not to impinge           to the power of the Appellate
                                      3                     ITA No. 5705/M/2013

authorities. After considering the facts and the submissions, the Ld.
CIT(A) allowed the claim of loss of Rs. 19,39,543/-.

5.    Aggrieved by this, Revenue is before us.

6.    The Ld. Departmental Representative strongly supported the
assessment order.

7.    The Ld. Counsel for the assessee reiterated what has been
submitted before the lower authorities.

8.    We have carefully perused the orders of the authorities below. We
have also the benefit of going through the order of the Tribunal in the
first round of litigation. It is an undisputed fact that in the first round of
litigation, the Tribunal restored the matter to the file of the AO to decide
the issue afresh in the light of the documentary evidences filed by the
assessee in support of his claim of loss of Rs. 19,39,543/-. It is also an
undisputed fact that in the fresh assessment proceedings, the assessee
filed complete evidences in support of the claim of loss. It is also an
undisputed fact that the AO declined to allow the claim of loss simply
because he drew support from the decision of the Hon'ble Supreme
Court in the case of Goetze (India) Ltd (supra). However, the Ld. CIT(A)
has rightly observed that the ratio of the        decision of the Hon'ble
Supreme Court in the case of Goetze India (supra) does not impinge the
power of the Appellate authorities. Therefore, the Ld. CIT(A) has rightly
allowed the claim of loss as per provisions of the law. We, therefore,
decline to interfere with the findings of the Ld. CIT(A).
                                     4                    ITA No. 5705/M/2013

9.    In the result, the appeal filed by the Revenue is dismissed.

      Order pronounced in the open court at the time of hearing on 22nd
January, 2015.

            Sd/-                                       Sd/-
     (JOGINDER SINGH )                          (N.K. BILLAIYA)
 Mumbai;  Dated : 22.01.2015
.../ RJ , Sr. PS

    /Copy of the Order forwarded to :
1.  / The Appellant
2.   × / The Respondent.
3.    () / The CIT(A)-
4.     / CIT
5.    ,   , 
     / DR, ITAT, Mumbai
6.   [  / Guard file.
                                                 / BY ORDER,
            ×  //True Copy//
                        (Dy./Asstt. Registrar)
                        ,  / ITAT, Mumbai
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