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COMMISSIONER OF INCOME TAX: DELHI-VIII Vs. ASHOK MITTAL
February, 07th 2013
       THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 07.02.2013

+       ITA No.26/2013

COMMISSIONER OF INCOME TAX: DELHI-VIII ... Appellant

                                        versus

ASHOK MITTAL                                              ... Respondent
Advocates who appeared in this case:
For the Petitioner           : Mr Abhishek Maratha, Sr. Standing Counsel.
For the Respondent           : Mr Mohit Chaudhary and Mr. R.K.Srivastava,
                               Advocates.


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE R.V.EASWAR

                                  JUDGMENT

R.V. EASWAR, J

        The revenue has proposed the following questions, stated to be

substantial questions of law, in this appeal filed under section 260A of the

Income Tax Act, 1961:-

        "A.     Whether the ITAT was correct in the eyes of law in
        affirming the order of the CIT (A) directing the AO to re-compute
        the income of the assessee in order to give the appeal effect by
        first setting-off the carry forward speculative losses against the
        speculative profit and then set-off the business losses to the extent
        of the balance speculation profit and other income?
        B.     Whether the impugned order passed by the ITAT is
        perverse both in facts and law?"






W.P.(C)26/2013                                                          Page 1 of 7
2.       The appeal arises out of the order passed by the Income Tax

Appellate Tribunal on 11.5.2012 in ITA No.4196/Del/2011 relating to the

assessment year 2000-01. In the return filed on 31.10.2000, the assessee

set off the brought forward loss from speculation business quantified at

`14,43,625/- and `75,39,186/- for the assessment years 1999-2000 and

1998-1999 respectively against the current year's speculation profit of

`1,46,56,512/-. In the assessment order passed under section 143(3) on

31.3.2003, the AO disallowed the set off claimed by the assessee on two

grounds.         The first ground was that the assessment orders for the

assessment years 1999-2000 and 1998-1999 were silent on the issue of

carry forward of the speculation losses. The second ground was that the

assessee did not furnish the particulars of share trading so as to arrive at

the true profits from the speculation business in the current or earlier

years.

3.       On appeal the CIT(Appeals) by order dated 14.8.2007 directed the

AO to allow the set off of the speculation losses of the assessment years

1998-1999 and 1999-2000 against the speculation profits for the

assessment years 2000-2001 as claimed by the assessee.




W.P.(C)26/2013                                                   Page 2 of 7
4.      The AO gave effect to the order of the CIT(Appeals) and in doing

so first adjusted the current year's loss from all the businesses of the

assessee against the current year's profits. The assessee had suffered loss

in the business carried on in the name and style of M/s Ashok Mittal &

Co.; M/s Carrara Marbles & Granite Ind. and M/s Light and Lighting.

The AO adjusted these losses against the speculation profits of

`1,46,56,512/-. This left a balance speculation profit of `19,42,970/-. It

was against this balance that the brought forward speculation losses were

adjusted. After this adjustment, the aggregate of the brought forward

speculation losses came to `1,01,39,841/- which were allowed to be carry

forward to the subsequent years.       This method of adjustment of the

brought forward speculation losses was disadvantageous to the assessee

in the sense that under sub-section (2) of section 73 of the Act, the carried

forward losses can be set off only against the speculation profits and not

against other profits. Moreover the speculation loss could not at that time

be carried forward for more than eight assessment years immediately

succeeding the assessment year for which the loss was first computed.

Thus the method of adjustment adopted by the AO was disadvantageous

to the assessee in whose computation in the return of income, the entire




W.P.(C)26/2013                                                    Page 3 of 7
brought forward losses stood adjusted against the speculation profit for

the current year.

5.      The assessee therefore filed an application under section 154 of the

Act seeking rectification of the order passed by the AO on 14.12.2007,

reiterating his claim in the return of income and asking for the

rectification of the order. The AO, by order dated 20.6.2008 rejected the

application stating that the method adopted by him with regard to the

adjustment of the brought forward speculation losses was in accordance

with the provisions of section 71 of the Act.

6.      Aggrieved, the assessee carried the matter in appeal before the CIT

(Appeals). He noted that the assessee's method of ad justment of the

brought forward speculation losses had the approval of the judgments of

the Calcutta High Court in CIT vs. New India Investment Corporation

Ltd. (1994) 205 ITR 618 and CIT vs. Pradeep Kumar Todi (2009) 181

Taxman 29=(2010) 325 ITR 96 and a judgment of the Bombay High

court in the case of Navnitlal Ambalal vs. CIT (1976) 105 ITR 735. He

noted that in these judgments the Calcutta and Bombay High Courts have

applied the circular No.23D of 1960 dated 12.9.1960 of the Central Board

of Direct Taxes which conceded that speculation losses carried forward







W.P.(C)26/2013                                                    Page 4 of 7
from previous years may be first set off against the speculation profits

before being set off against any other current profits, if that procedure is

more beneficial to the assessee. The CIT(Appeals) also noted that the

courts have also recognized that though the circular was issued in the

context of section 24 of the 1922 Act, it has not been withdrawn and

therefore held the field even under section 73 of the 1961 Act. In this

view of the matter, he upheld the assessee's method of adjusting the

brought forward speculation losses against such speculation profits. This

method was found by the CIT(Appeals) to be more advantageous to the

assessee. He thus allowed the appeal.

7.      The revenue carried the matter in appeal before the Tribunal. The

Tribunal after noticing the view taken by the income tax authorities

dismissed the appeal by observing as under:-

        "14. We have heard the rival contentions in light of the material
        produced and precedent relied upon.            We find that Ld.
        Commissioner of Income Tax (Appeals) has adopted the correct
        approach. As per the Boart Circular and decision of Hon'ble
        Calcutta High Court referred by the Ld. Commissioner of Income
        Tax (Appeals), it is evident that carried forward speculation
        losses have to be adjusted against the speculation profit before
        allowing any other loss to be adjusted against those profits and
        other incomes. The Board Circular though issued in the context
        of Section 24 of the 1922 Act, has been held by the Courts hold the
        field. We do not find any infirmity in the order of the Ld.
        Commissioner of Income Tax (Appeals). Accordingly, we uphold
        the same."




W.P.(C)26/2013                                                        Page 5 of 7
8.      Having considered the matter, we are of the view that there is no

merit in the appeal and no substantial question of law arises.           The

Tribunal has applied the well-settled position that circulars issued by the

CBDT relaxing the rigour of the provisions of the Act are binding on the

AO and others who are executing the Income Tax Act (see: The

Constitution Bench judgment of the Supreme Court in the case of Navnit

Lal Zaveri vs. K.K.Sen (1965) 56 ITR 198). There is no dispute that the

circular (supra) has not been withdrawn and therefore would still govern

the treatment to be given to the brought forward speculation losses

though it was issued under the 1922 Act. It is not the case of the revenue

that the provisions of section 24 of the old Act and section 73 of the new

Act are materially different and therefore the circular can have no

application under the new Act. The order of the Tribunal is in conformity

with the legal position that beneficial circulars issued by the CBDT are

binding on the income tax authorities. It is not also the case of the

revenue that the working adopted by the AO was in fact more beneficial

to the assessee.




W.P.(C)26/2013                                                   Page 6 of 7
9.      In the above circumstances the appeal is without merit.        No

substantial question of law arises for our consideration. The appeal is

accordingly dismissed with no order as to costs.


                                                     R.V.EASWAR, J



                                         BADAR DURREZ AHMED, J
FEBRUARY 07, 2013
Bisht




W.P.(C)26/2013                                               Page 7 of 7
 
 
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