TIL INVESTMENTS P. LTD, MUMBAI V. ITO 7(3)(3), MUMBAI

ITA 1310/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79368 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 26-06-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 11-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: BALJIT SINGH
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI VIVEK VARMA, JM ./ I.T.A. NO. 1310/MUM/2011 ( / ASSESSMENT YEAR: 2005-06) TIL INVESTMENTS PRIVATE LIMITED TIME SQUARE, WING A, 4 TH FLOOR, OFFICE NO. 401, OPP. MITTAL INDUSTRIAL ESTATE, ANDHERI-KURLA ROAD, ANDHERI (E), MUMBAI-400 059 / VS. INCOME TAX OFFICER, WARD 7(3)(3) MUMBAI ./! ./PAN/GIR NO. ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ' % & / APPELLANT BY : SHRI BALJIT SINGH #$ ' % & / RESPONDENT BY : SHRI PITAMBAR DAS ' ( ) % * + / DATE OF HEARING : 26.06.2014 ,-. % * + / DATE OF PRONOUNCEMENT : 04.07.2014 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-13, MUMBAI (CIT(A) FOR SH ORT) DATED 26.10.2010, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A. Y.) 2005-06 VIDE ORDER DATED 24.07.2007. 2. THE APPEAL RAISES TWO ISSUES, PER ITS THREE EFFE CTIVE GROUNDS; GROUND NOS. 1 & 5 BEING GENERAL IN NATURE, NOT WARRANTING ANY ADJUDIC ATION. WE SHALL PROCEED GROUND-WISE. 2 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO 3.1 VIDE ITS SECOND GROUND, THE ASSESSEE CONTESTS T HE DISALLOWANCE U/S.14A IN THE SUM OF RS.4,29,191/- IN RELATION TO ITS DIVIDEND INCOM E CLAIMED AND ALLOWED (RS.18,29,055/-), TAX EXEMPT U/S.10(34) OF THE ACT. EXPLAINING THE AS SESSEES CASE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT ADMITTEDLY THE ASSESSEE HAD NOT EFFECTED ANY SUO MOTU DISALLOWANCE U/S.14A. THE SAME WAS SO FOR THE REASO N THAT IT, AN INVESTMENT COMPANY ENGAGED AGAIN PRINCIPALLY IN THE TRADING OF SHARES, HAD NOT INCURRED ANY EXPENDITURE IN RELATION THERETO. IT IS ONLY THE EXPENDITURE ACTUALLY INCURRED BY THE ASSESSEE IN RELATION TO AN INCOME NOT FORMIN G PART OF ITS TOTAL INCOME, WHICH COULD BE, ON IT BEING CLAIMED, SUBJECT TO A DISALLOWANCE U/S.14A. THE SAME COULD NOT BE EXTENDED TO ANY NOTIONAL EXPENDITURE BY PRESUMING I T HAVING BEEN INCURRED AND CLAIMED EXPENDITURE, EVEN AS EXPLAINED BY THE HONBLE COURT S, AS IN THE CASE OF CIT VS. WALFORT SHARE & STOCK BROKERS (P.) LTD. [2009] 310 ITR 421 (BOM) AND CIT VS. HERO CYCLES LTD. [2010] 323 ITR 518 (P & H). IN THE INSTANT CASE, TH E REVENUE HAS PRESUMED CERTAIN EXPENDITURE TO BE IN THE NATURE OF COMMON EXPENDITU RE, AND ALLOCATED THE SAME ON SOME BASIS. NEITHER WOULD THE SAME QUALIFY TO BE COMMON EXPENDITURE AND, THEREFORE, SUBJECT TO ALLOCATION, NOR IS THE BASIS THEREOF SCIENTIFIC, AS CONSIDERED BY THE AUTHORITIES BELOW. THE DISALLOWANCE WAS, ACCORDINGLY, PRAYED FOR BEING DELETED. 3.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD, ON THE OTHER HAND, RELY ON THE ORDERS OF THE AUTHORITIES BELOW, CLAIMING THAT NO I NFIRMITY THEREIN HAD BEEN POINTED OUT BY THE ASSESSEE, I.E., APART FROM MAKING SOME BALD CLA IMS BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 THE ASSESSEES CASE IS ESSENTIALLY WITH REFEREN CE TO SUB SECTIONS (2) & (3) OF SECTION 14A, WHICH CLEARLY PROVIDES FOR A DISSATISF ACTION OF THE ASSESSING OFFICER (A.O.) WITH THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE I N RESPECT OF EXPENDITURE, TO WHATEVER EXTENT INCLUDING NIL, INCURRED BY IT IN RELATION TO THE INCOME NOT FORMING PART OF ITS TOTAL INCOME UNDER THE ACT FOR THE RELEVANT YEAR, AND WHI CH WOULD ONLY ENABLE THE A.O. TO PROCEED TO EFFECT A DISALLOWANCE U/S.14A, ADOPTING THE COMPUTATIONAL FORMULA OF THE RULE PRESCRIBED FOR THE PURPOSE, I.E., RULE 8D, MANDATOR Y W.E.F. A.Y. 2009-10. THERE IS NO 3 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO DISPUTE WITH REGARD TO THE LAW IN THE MATTER. SO, H OWEVER, EVEN AS OBSERVED BY THE BENCH DURING HEARING ITSELF, THE INITIAL ONUS TO EXHIBIT ITS CASE OF THE STATED EXPENDITURE NIL IN THE INSTANT CASE, AND WITH REFERENCE TO ITS ACCOUNT S, IS ONLY ON THE ASSESSEE. IT IS ONLY WHERE SUCH INITIAL ONUS STANDS DISCHARGED BY THE AS SESSEE, THAT THE SAME SHIFTS TO THE A.O., WHO IS REQUIRED TO CLARIFY/COMMUNICATE THE RE ASONS FOR HIS DISSATISFACTION THEREWITH, I.E., THE ASSESSEES CLAIM/S. IT NEEDS T O BE NOTED THAT THE ASSESSEES CLAIM COULD BE MADE AND, FURTHER, EXAMINED BY THE A.O., ONLY WI TH REFERENCE TO ITS ACCOUNTS. THE MATTER STANDS EXPLAINED BY THE TRIBUNAL AT LENGTH P ER ITS DECISION IN THE CASE OF AFL P. LTD. VS. ASST. CIT [2013] 28 ITR (TRIB) 263 (MUM) AND KUNAL CORPORATION VS. ASST. CIT [2013] 28 ITR (TRIB) 277 (MUM), DRAWING ON THE DECI SION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LTD. VS. DY. CIT [2010] 328 ITR 81 (BOM), WHICH MAKES FOR AN EXHAUSTIVE READING OF THE LAW IN THE MATTER, INCLUDING WITH REFERENCE TO SUB-SECTIONS (2) & (3) OF SECTION 14A, RENDERED UPON CONSIDERING THE JUDICIAL PRECEDENTS IN THE MATTER. 4.2 COMING TO THE FACTS OF THE CASE, OUR FIRST OBSE RVATION IS THAT THE ASSESSEES ACCOUNTS BEING ADMITTEDLY NOT MAINTAINED ACTIVITY-WISE, THER E IS NO DOUBT OF IT BEING NOT ABLE TO DISCHARGE THE ONUS ON IT TO EXHIBIT HAVING NOT INCU RRED ANY EXPENDITURE AS CLAIMED - IN RELATION TO THE DIVIDEND INCOME ARISING TO IT FOR T HE RELEVANT YEAR. A FAIR ESTIMATION, ADOPTING A REASONABLE METHOD FOR ALLOCATING THE COM MON (INDIRECT) EXPENDITURE WOULD THEREFORE BE REQUIRED TO BE MADE, AND WHICH IS WHAT THE A.O. HAS DONE. OF THE TOTAL CLAIM OF EXPENDITURE AT RS.28,64,351/-, DEBITED TO THE PR OFIT AND LOSS ACCOUNT, EXPENDITURE AGGREGATING TO RS.23,13,250/- STANDS FOUND BY HIM A S RELATING TO THE ASSESSEES BUSINESS OF TRADING IN SHARES OR OTHER MISCELLANEOUS INCOME, ASSESSABLE U/S.28. THE APPORTIONMENT HAS ACCORDINGLY BEEN APPLIED BY HIM FOR THE BALANCE EXPENDITURE OF RS.5,26,098/-, WHICH HAS BEEN SPLIT THREE WAYS, I.E., THE SHARE TRADING INCOME; THE INVESTMENT ACTIVITY YIELDING DIVIDEND; AND THE INTEREST INCOME ARISING ON THE IN VESTMENT IN BANK FDS, IN THE RATIO OF THE INVESTMENT THEREIN. WE, AS DID THE LD. CIT(A), DO NOT FIND THE BASIS OF APPORTIONMENT ADOPTED AS NOT REASONABLE, THOUGH, AS STATED, IT IS THE AVERAGE INVESTMENT IN THE TRADED 4 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO SHARES AS AGAINST THE PURCHASE OF SUCH SHARES, WHIC H IN OUR VIEW SHALL PROVIDE INTERNAL CONSISTENCY TO THE FORMULA APPLIED. HOWEVER, WITH R EGARD TO THE COMMON EXPENDITURE OF RS.5.26 LACS, THE BULK OF IT IS BY WAY OF FILING FE ES (AT RS.4.60 LACS). THE NATURE THEREOF COULD NOT BE EXPLAINED BY THE LD. AR, I.E., ON BEIN G ASKED BY THE BENCH DURING HEARING, WHICH IS ALSO REFLECTIVE OF THE MANNER IN WHICH THE ASSESSEE PROSECUTES ITS CASE BEFORE THE LOWER AUTHORITIES. UNLESS AND UNTIL THE SPECIFIC PU RPOSE FOR WHICH THE SAID EXPENDITURE, CLAIMED AS FILING FEES, IS EXPLAINED AND SUBSTANTIA TED, THE INFERENCE OF IT BEING AN EXPENDITURE INCURRED BY THE ASSESSEE FOR THE REASON OF IT BEING A CORPORATE ENTITY AND, THEREFORE, ONLY A COMMON EXPENDITURE, AS IS THE CAS E FOR THE OTHER SUCH EXPENDITURE, VIZ. AUDIT FEES, FEES FOR TAXATION MATTERS, ETC., WOULD HOLD. 4.3 THOUGH, THEREFORE, THE ASSESSEE HAS NOT BEEN AB LE TO MAKE OUT ANY CASE BEFORE US, NOR DO WE FIND THE INFERENCE DRAWN BY THE A.O. AND, THUS, HIS DECISION IN THE MATTER AS NOT VALID, WE, IF ONLY TO ENSURE THAT NO DISALLOWANCE N OT WARRANTED BY LAW SURVIVES OUR ORDER, RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ENABLE A FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CLAIM OF THE ALLOCATED EXPENDITURE OF RS.5.26 LACS, OR ANY P ART THEREOF, AS NOT BEING A CORPORATE EXPENDITURE OR COMMON EXPE NDITURE, LIABLE FOR ALLOCATION, BUT ONLY AN EXPENDITURE INCURRED IN RELATION TO ITS SHA RE TRADING BUSINESS. THE A.O. SHALL ALSO REMOVE ANY DISCREPANCY IN THE PROPORTIONATE METHOD ADOPTED, SO THAT A UNIFORM BASIS, VIZ. INVESTMENT, IS APPLIED ACROSS THE THREE ACTIVI TY SEGMENTS DISCERNED BY HIM. WE DECIDE ACCORDINGLY. THE SECOND LIMB OF THE ASSESSEES GROUND NO. 2 REFE RS TO A DEEMED LOSS OF RS.14,39,151/-. ON BEING QUERIED IN THE MATTER DURI NG HEARING, THE LD. AR CONCEDED OF THE SAME AS HAVING NO BEARING TO THE IMPUGNED DISALLOWA NCE U/S.14A AND, ACCORDINGLY, NOT PRESSED, MAKING AN ENDORSEMENT TO THAT EFFECT ON TH E MEMO OF APPEAL. THE ASSESSEES GROUND IS DISPOSED OF ACCORDINGLY. 5. PER GROUND NOS. 3 & 4, THE ASSESSEE AGITATES IT S BUSINESS INCOME FROM TRADING IN SHARES BEING REGARDED AS SPECULATION INCOME BY THE REVENUE BY INVOKING EXPLANATION TO SECTION 73 OF THE ACT, WHICH READS AS UNDER: 5 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO LOSSES IN SPECULATION BUSINESS. 73. (1) ANY LOSS, COMPUTED IN RESPECT OF A SPECULATION BUSINESS CARRIED ON BY THE ASSESSEE, SHALL NOT BE SET OFF EXCEPT AGAINS T PROFITS AND GAINS, IF ANY, OF ANOTHER SPECULATION BUSINESS. ( 2) . (3) (4) .. EXPLANATION. WHERE ANY PART OF THE BUSINESS OF A COMPANY (OTHER THAN A COMPANY WHOSE GROSS TOTAL INCOME CONSISTS MAINLY OF INCOME WHICH IS CHARGEABLE UNDER THE HEADS 'INTEREST ON SECURITIES' , 'INCOME FROM HOUSE PROPERTY', 'CAPITAL GAINS' AND 'INCOME FROM OTHER S OURCES', OR A COMPANY THE PRINCIPAL BUSINESS OF WHICH IS THE BUSINESS OF BANKING OR THE GRANTING OF LOANS AND ADVANCES) CONSISTS IN THE PURCHASE AND SA LE OF SHARES OF OTHER COMPANIES, SUCH COMPANY SHALL, FOR THE PURPOSES OF THIS SECTION, BE DEEMED TO BE CARRYING ON A SPECULATION BUSINESS TO THE EXT ENT TO WHICH THE BUSINESS CONSISTS OF THE PURCHASE AND SALE OF SUCH SHARES. THE ASSESSEES CASE BEFORE US, AS BEFORE THE REVENU E AUTHORITIES, WHICH THOUGH DID NOT FIND THEIR FAVOUR, WAS THAT ITS DIVIDEND INCOME, TH OUGH EXEMPT UNDER CHAPTER III OF THE ACT (PER SECTION 10(34)), IS INCLUDIBLE IN THE GRO SS TOTAL INCOME (GTI) WHICH IS NOT DEFINED UNDER THE ACT, AS INCOME FROM OTHER SOURCE S. EXPLANATION TO SECTION 73, OPERATING TO DEEM ITS BUSINESS INCOME AS ARISING FR OM A SPECULATION BUSINESS AND, THUS, A SPECULATIVE INCOME, WOULD NOT THUS STAND TO BE ATTR ACTED. THE DIVIDEND INCOME HAS HAD A CHEQUERED HISTORY IN-AS-MUCH AS THE SAME FORMED PAR T OF THE TOTAL INCOME, I.E., UNTIL IT FOUND INCLUSION IN SECTION 10(33), WHICH PROVISION STOOD OMITTED AFTER SOME TIME. THEN, AGAIN, THOUGH RESTORED SUBSEQUENTLY, THE DIVIDEND I NCOME DID NOT FIND INCLUSION THEREIN BUT IN SECTION 10(34) BY VIRTUE OF FINANCE ACT, 200 3 W.E.F. 01.04.2004; THE LAW CHARGING TAX THEREON U/S.115-O ON THE COMPANY DECLARING THE DIVIDEND. NOW IT COULD NOT BE THAT WITH EVERY CHANGE IN THE LAW QUA THE EXEMPTION STATUS OF THE DIVIDEND INCOME, AN ASSESSEE WOULD BE REGARDED AS BEING ENGAGED, OR NOT SO, IN SPECULATION BUSINESS. THE PROVISION, AS EXPLAINED AT THE TIME OF ITS COOPTION ON THE STATUTE, WAS INSERTED TO PRECLUDE COMPANIES FROM BOOKING LOSSES THROUGH DEALING IN SH ARES OF GROUP COMPANIES OR EVEN 6 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO OTHERWISE, AND THUS REDUCING THEIR TAX LIABILITY. T HE SAID PROVISION WOULD THEREFORE HAVE NO APPLICATION IN THE PRESENT CASE. 6. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 6.1 THE ASSESSEES CASE FAILS JUDICIAL SCRUTINY; TH E MATTER NOT BEING VIRGIN, WITH THE REVENUE RELYING ON THE DECISIONS IN THE CASE OF CIT VS. ARVIND INVESTMENT LTD. [1991] 192 ITR 365 (CAL) AND BY THE SPECIAL BENCH OF THE T RIBUNAL IN THE CASE OF ASST. CIT VS. CONCORD COMMERCIALS (P.) LTD. [2005] 95 ITD 117 (MUM) (SB). GTI IS NOT UNDEFINED , BUT DULY DEFINED U/S.80-B(5), AS OBSERVED DURING HE ARING ITSELF, CORRECTING THE LD. AR. HOW COULD, ONE MAY ASK, THE PROVISION BE APPLIED IF THE SAME WERE NOT SO ? TRUE, THE SAME STATES IT AS IN THIS CHAPTER GROSS TOTAL INC OME MEANS.., I.E., CHAPTER VI-A. BUT THEN, HOW IS THE TOTAL INCOME, DEFINED U/S.2(45), TO BE COMPUTED EXCEPT BY ALLOWING FROM THE TOTAL INCOME COMPUTED BEFORE ALLOWING THE DEDUCTIONS SPECIFIED IN CHAPTER VIA, THE SAID DEDUCTIONS, I.E., GTI, BY DEFINITION? THE ARGUMENT, THUS, IS OF NO MOMENT. 6.2 PROCEEDING FURTHER, IRRESPECTIVE OF THE MOTIVAT ION OR THE CAUSE/S THAT LED TO, OR WERE RESPONSIBLE FOR, THE CO-OPTION OF EXPLANATION TO SECTION 73 (BY TAXATION LAWS (AMENDMENT) ACT, 1975 W.E.F. 01.04.1977) ON TH E STATUTE, ONCE LEGISLATED, THE SAME HAS TO BE READ IN TERMS OF ITS SPECIFIC LANGUAGE, W HICH IS UNAMBIGUOUSLY CLEAR, CLARIFYING IT TO BE A DEEMING PROVISION. IT IS ONLY WHERE THER E IS AN AMBIGUITY IN THE PROVISION, SO THAT THE SAME IS LIABLE TO BE CONSTRUED IN MORE THA N ONE MANNER, THAT THE INTERPRETATION IN ACCORD AND HARMONY WITH ITS UNDERLYING OBJECT AND T HE SCHEME OF THE ACT, OR MORE SO, IS TO BE PREFERRED IN-AS-MUCH AS THE INTERPRETATIVE EX ERCISE SHOULD MAKE THE ACT WORKABLE RATHER THAN DEFEATING ITS PURPOSE, SO THAT REFERENC E TO THE STATEMENTS ISSUED OR THE EXPLANATORY NOTES INFORMING ITS INTRODUCTION ON THE STATUE BOOK ARE REFERRED TO. THE MATTER, IN ANY CASE, BEEN DEALT WITH EXHAUSTIVELY B Y THE HONBLE COURTS OF LAW, INCLUDING THE DECISION IN THE CASE OF ARVIND INVESTMENT LTD. (SUPRA), BEFORE WHOM ALSO SIMILAR ARGUMENT WAS MADE; IT ALSO REFERRING TO THE CIRCULA R ISSUED BY THE BOARD IN THE MATTER. SIMPLY PUT, THE EXPLANATION ONLY DEEMS THAT PART OF THE ASSESSEES BUSINESS WH ICH CONSISTS OF PURCHASE AND SALE OF SHARES TO BE A SPE CULATION BUSINESS FOR THE PURPOSES OF THE 7 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO ACT. THE EXCLUSION IS FOR THE COMPANIES IN THE BUSI NESS OF BANKING OR THOSE WHOSE PRINCIPAL BUSINESS IS OF GRANTING LOANS AND ADVANCE S. THE ASSESSEE-COMPANY FALLS UNDER NONE. THE OTHER EXCLUSION IS INCOME BASED, SO THAT A COMPANY WHOSE GTI CONSISTS MAINLY OF OTHER THAN BUSINESS INCOME IS OUTSIDE THE PURVIE W OF THE EXPLANATION . THE SAME, AS WOULD BE APPARENT, IS TOWARD PROVIDING AN OBJECTIVE BASIS, SO THAT A COMPANY NOT ENGAGED PRINCIPALLY IN ANY BUSINESS ACTIVITY, INCOME WHEREF ROM IS ASSESSABLE U/S.28, STANDS EXCLUDED. 6.3 IN THE FACTS OF THE CASE, THE ASSESSEE HAS, IN PURSUANCE OF ITS ACTIVITIES, INCURRED EXPENDITURE AT RS.28.64 LACS, OF WHICH RS.23.13 LAC S (I.E., 81% APPROX.) IS ADMITTEDLY QUA THE ASSESSEES BUSINESS OF TRADING IN SHARES. EVEN FOR THE BALANCE RS.5.26 LACS IT CLAIMS THE SAME TO BE TOWARD THE SAID BUSINESS AND NOT QUA ITS INVESTMENT ACTIVITY, SO THAT THE PROPORTIONATE FORMULA, DETERMINING THE EXPENDITURE RELATABLE TO THE SAID BUSINESS AT RS.0.25 LACS, IS NOT CORRECT, AND WHICH WE HAVE FOU ND AS NOT WITHOUT SUBSTANCE, RESTORING THE MATTER BACK TO THE FILE OF THE A.O. FOR DETERMI NING THE NATURE OF THE SAID BALANCE EXPENDITURE, AND ITS ALLOCATION, I.E., TO THE EXTEN T FOUND TO BE COMMON EXPENDITURE, AFTER HEARING THE ASSESSEE. HOW COULD THE ASSESSEE, THEN, TURN AROUND AND CLAIM THAT IT IS NOT ENGAGED MAINLY IN BUSINESS ACTIVITY ? FACTS APART, THE ARGUMENT IS ALSO NOT LEGALLY VALID IN-AS-MUCH AS THE DIVIDEND INCOME, EXEMPT U/S.10(34), NOT FORMING PART OF THE TOTAL INCOME, THERE IS NO QUESTION OF IT BEING INCLUDED IN THE TOTAL INCOME (UNDER THE HEAD INCOME FROM OTHER SOURCES), WHICH COULD ONLY BE WHERE THE INCOME IS, AND TO THE EXTEN T IT IS, ASSESSABLE U/S.56. THE ISSUE, IN FACT, STANDS CONSIDERED AT LENGTH BY THE TRIBUNAL P ER ITS SPECIAL BENCH DECISION IN THE CASE OF CONCORD COMMERCIALS (P.) LTD. (SUPRA). 6.4 THE ASSESSEES BUSINESS INCOME HAS ACCORDINGLY BEEN RIGHTLY CONSIDERED BY THE REVENUE AS, BY VIRTUE OF EXPLANATION TO SECTION 73, SPECULATION INCOME OR INCOME OF A SPECULATION BUSINESS, WHICH AS PER EXPLANATION TO SECTION 28 IS DEEMED AS A SEPARATE AND DISTINCT BUSINESS FROM ANY OTHER BUSINESS BEING CAR RIED ON BY THE ASSESSEE. NO INFIRMITY, 8 ITA NO. 1310/MUM/2011 (A.Y. 2005-06) TIL INVESTMENTS P. LTD. VS. ITO QUA FACT/S OR LAW, THUS, ATTENDS THE IMPUGNED ORDER, WH ICH IS ACCORDINGLY UPHELD. WE DECIDE ACCORDINGLY. 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 04, 2014 SD/- SD/- (VIVEK VARMA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' 0) MUMBAI; 1( DATED : 04.07.2014 .(../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' 2* ( ) / THE CIT(A) 4. ' 2* / CIT - CONCERNED 5. 5 6 #*(78 , + 78. , ' 0) / DR, ITAT, MUMBAI 6. 6 9 : ) / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , ' 0) / ITAT, MUMBAI