1. S. 73 of the Income-tax Act provides that any loss computed in respect of speculation business carried on by an assessee will not be set off except against the profits and gains, if any, of another speculation business. Further, where any loss computed in respect of a speculation business for an assessment year is not wholly set off in the above manner in the said year, the excess shall be allowed to be carried forward to the following assessment year and set off against the speculation profits, if any, in that year, and so on.
2. Under normal circumstances profits and loss from trans-actions in shares based on delivery made by an assessee with the intent of business would be assessable under the head profits and gains of business. The loss, if any, from such transactions would be adjustable with income from any source under the same head or from, any other head except income under the head ‘Capital Gains’. But in the case of certain companies by virtue of Explanation to S. 73, such profit or loss will be deemed to be speculative. This Explanation was introduced by the Taxation Laws (Amendment) Act, 1975, with effect from 1-4-1977 and was amended by the Finance Act, 1987, with effect from 1-4-1988 and reads as follows :
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 sources’, 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 sale 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 extent to which the business consists of the purchase and sale of such shares.
3. The object of this provision is to curb the device sometimes resorted to by business houses to manipulate and reduce the taxable income of companies under their control.
Scope:
4. To begin with, this Explanation applies to companies and its scope is limited to their aggregate profits and losses arising from purchase and sale of shares.
5. This Explanation excludes certain type of companies and as a corollary, includes the rest of the companies.
Exclusions:
6. Companies whose gross total income (GTI) consist mainly of the sum of income derived from ‘Income from House Property’, ‘Capital Gains’ and ‘Income from Other Sources’ are saved from the rigours of this Explanation.
7. Banking companies or companies whose principal business is that of granting loans and advances are also excluded from the scope of this Explanation.
Analysis:
8. What, therefore, needs to be determined first is the nature of companies to which the provisions of this Explanation would apply. And in that context, it becomes necessary to understand what is meant by the term ‘consists mainly of’ used in the Explanation. This phrase has been used to describe the quality of ‘gross total income’ (GTI). And although GTI has not been defined in S. 73, its meaning could be culled out from the use of this phrase in S. 80B(5) of the Act which contains the following definition of GTI :
(5) ‘Gross total income’ means the total income computed in accordance with the provisions of this Act, before making any deduction under this Chapter;
9. The manner of computation of GTI has not been prescribed in the Act. But forms for filing Return of Income prescribed in the Income-tax Rules have laid out the manner of arriving at the GTI. Incomes under the various heads are aggregated to arrive at the GTI as a step to computing the Total Income. Deductions allowed under Chapter VIA are made from the GTI to arrive at the Total Income. Agricultural Income is to be added to the Total Income to find out the applicable rate of tax.
10. To see what the gross total income ‘consists mainly of’, one has to put incomes under the head ‘Income from House Property’, ‘Capital Gains’ and ‘Income from Other Sources’ on one side and ‘Profits and Gains of Business and Profession’ on the other side to see which is greater. Any income that does not form a part of the total income though, will have to be excluded for the purpose of determining the constituents of GTI. For instance, dividend income would not form any part of the ‘Income from Other Source’; similarly, share of profit or loss in a registered partnership firm will not form part of the ‘Profits and Gains of Business & Professions’, if the company happens to be a partner in any registered firm.
11. A question that would immediately come to mind is, what if there is a loss under the head business (including loss from share dealings) and there is income in the aggregate from all the residual heads, though the loss under the head business be a far greater number than the income from the other heads. In other words, whether a negative integer would always be smaller than a positive integer ? It may well be so in arithmetic but not, so it seems, for the purpose of the Income-tax. The Calcutta High Court has, relying upon the decision of the Supreme Court in CIT v. J. H. Golta, [(1985) 156 ITR 323] in Commissioner of Income-tax v. Park View Properties P. Ltd., [261 ITR 473], held that we need only look at the magnitude and not the direction of amounts to determine which is larger, and if the numbers in loss under the head business are greater than the numbers in income in the residual categories then business ought to be regarded as the main activity. The Supreme Court had held in CIT v. J. H. Golta (ibid) that income defined in S. 16(3) of the Indian Income-tax Act, 1922 would also include ‘loss’.
12. Another aspect that needs to be borne in mind is that the scope of this Explanation is restricted to profits and losses emanating from purchase and sale of shares of other companies with the intent of business. And therefore, profit and loss resulting from trade in any other form of security would not attract the provisions of this Explanation. In Trade Team Private Limited. v. Deputy Commissioner of Income-tax, [54 ITD 306] Bombay, the ITAT found that the assessee had purchased and sold the shares only of one company, i.e., Annapurna Foods Pvt. Ltd. and there was no material before them to hold that it had been dealing in shares of other companies. They held that a solitary transaction cannot be regarded as business activity unless proved otherwise by the department, and thus, provisions of this Explanation were not applicable to the company. Similar view has been expressed in Kruti Marketing Ltd. v. Assistant Commissioner of Income-tax, 118 Taxman 194 (May).
13. Whether units of Unit Trust of India could be considered shares of a company so as to fall within the ambit of this Explanation was resolved by the Supreme Court in Apollo Tyres Ltd. v. CIT, [122 Taxmann 562] where it was held that even if UTI was a deemed company and the income distributed by it was by way of dividend, it did not make the UTI a deemed company, and therefore, the transaction by a company in units of UTI would not result into speculative income or loss.
14. This Explanation begins with ‘where any part of the business of a company’ and it has been argued as to whether this Explanation could be invoked where dealing in shares was the only business of the company and not merely a part. The Calcutta High Court held in Commissioner of Income-tax v. Arvind Investments Limited, [192 ITR 365] that a part would include the whole, and even if dealing in shares happened to be the only business of the company, its profits or losses from such dealings would be deemed speculative, irrespective of whether share transactions were based on delivery or not, provided the other conditions are satisfied. To put it in perspective, where even an investment company which has been incorporated with the object inter alia of dealing in shares, transacts in shares as its only business or even its main business, then its profit or loss from such transactions would be regarded as speculative, and dealt with accordingly. It is interesting though, as to how the various expenses incurred by such a company, in carrying on business like interest on capital borrowed to purchase shares, the various administrative and statutory expenses, etc. of the company would be treated ? Whether they would partake of the charter of expenses incurred in connection with speculative business or non-speculative business, even though no such non-speculative business was being carried on. The deeming provision requires the profit or loss from share trade to be considered speculative, and therefore, expenses directly attributable to such business would have to be regarded as having been incurred in the course of speculative business.
15. It has been variously argued that if the nature of transaction were not such that it could be regarded as speculation as per Ss.5 of S. 43, then Explanation 73 would have no application. It has also been argued that S. 70 dealing with adjustment of losses inter se within the various sources of income under the same head or S. 71 dealing with set-off of losses amongst the various heads of income as envisaged by that Section, will take precedence over the application of Explanation to S. 73 for various reasons including the fact that S. 70 and 71 precede S. 73. It was argued in R. P. G. Industries Ltd. v. Assistant Commissioner of Income-tax, [85 ITD 105 ITAT, Calcutta] that the application of sections is to be taken in the order in which they are placed in the Act, and therefore, S. 72 will take precedence over the application of S. 73 and since business loss is already carried forward u/s.72 of the Act, by the time it comes to application of S. 73, there is nothing left to which this Section could be applied. The tribunal held that the very basis of this proposition was fallacious because of application of the principle of generalia specialibus non-derogant, which says that a specific provision has to take precedence over the general provision. Besides, precedence being assigned to provisions of law based on the order in which they are placed in an enactment was alien to the principles of interpretation.
16. The Calcutta High Court has in Commissioner of Income-tax. v. New India Investment Corporation Limited, [205 ITR 618] held that if speculation losses for the earlier years are carried forward, and if in the year of account speculation profit is earned by the assessee, then such speculation profits for the accounting year should be adjusted against the carried forward speculation loss of the previous year, before allowing any other loss to be adjusted against those profits.
17. Since this Explanation also excludes companies whose principal business is the business of banking or the granting of loans and advances, it would be necessary to understand the manner of determining the principal business of a company. In most cases, there would be no obvious difficulty in ascertaining what the principal business of the company is. But there are cases where the ascertainment of principal business may not be straightforward. For instance, how would the principal business be ascertained where the majority of the funds of the company have remained invested in shares or some such asset throughout most of the financial year, but were used for grant of loans and advances towards the end of the year or vice versa; or where small funds applied in shares yielded a much greater income than the larger tranche of funds invested in loans and advances which could yield relatively smaller gains. Principal business has not been defined in the Explanation to the section or even elsewhere in the act and its meaning has, therefore, to be understood in the context of this section. It was held in Off-Shore India Ltd. v. Income-tax Officer, [15 ITD 549 ITAT Calcutta] that objects in the Memorandum of Association of a company are not conclusive of the nature of business carried on by the assessee-company, and the activity which the company actually engages in alone determines the nature of its business. If the amount invested in the share business is more in aggregate than the amount invested in the money-lending business, then the assessee company cannot be deemed to be engaged principally in the business of granting loans.
18. To sum up, the profits and losses of a company from the business of dealing in shares will be speculative and dealt with as such, unless the company is a banking company or is principally engaged in the business of granting loans and advances or whose gross total income from heads of income other than business is larger than income under the head Profits and Gains of Business or Profession.
Now let us analyse the above provision with the latest case laws.
• The Tribunal held where swapping of shares was approved by a Government agency like FIPB, approved ratio of shares to be swapped, prudence of transaction could not be challenged and loss there from had to be assessed. Refer, Capital International Emerging Markets Fund .v. Dy. DIT, 145 ITD 491.
• Under Explanation to s.73, business of purchase and sale of shares by assessee was speculation business and it was entitled to set off losses from sale and purchase of share against profits of business of company from loans and advances. Refer, Saurabh Industrial Financing Ltd. v. ITO, 219 Taxman 112.
• Deeming fiction that where any part of companys business consists of purchase and sale of shares company deemed to carry on speculative transaction. Whether assessee was in business of advancing loans and earning interest. Not to be concluded by one isolated instance and Gross total income of assessee mainly consisting of income chargeable under head Capital gains or Income from other sources and Deeming fiction not applicable & Loss cannot be treated as speculation loss. Refer, CIT v. Paranjay Mercantile Ltd., 361 ITR 462.
• The assessee was engaged in trading of shares for customers and for itself on delivery basis. The A.O. treated business of the assessee with regard to trading of shares for itself as speculative business within the meaning of provisions of section 73. The tribunal upheld the action of the A.O. and held that where assessee is engaged in business of share brokerage and share trading, income on account of trading of shares for itself is speculation income. Refer, Nashik Capital Financial Services (P) Ltd. .v. Dy.CIT, 142 ITD 581.
• Derivative transaction – Definition of speculative transaction in section 43 (5) is confined to its application to that section and cannot be extended to section 73 of the Act. Refer, CIT .v. DLF Commercial Developers, 91 DTR 49.
• Loss from shares dealing cannot be deemed to be from “speculation” under Explanation to s. 73 if company is not engaged in the “business” of shares dealing. Refer, CIT .v. Orient Instrument Pvt. Ltd Delhi HC.
• As per CBDT Circular Carry forward and set off-To be set off against speculative profit of current year before adjusting any other loss. Refer, CIT v. Ashok Mittal, 357 ITR 245.
• The Assessee had shown income from house property at Rs.35,73,950/-, income from other sources at Rs.24,92,129/-, capital gain on sale of flat at Rs.,62,285/- and loss from sale of shares at Rs.3,25,23,981/-. The Assessee contented that main source of income was income from house property and therefore, explanation to section 73 was not applicable. The Tribunal held, that since the figure of loss in absolute terms in share trading was higher than income from other sources taken together, the explanation to section 73 would be applicable. The assessment order was upheld. Refer, DCIT v. Savlani Trading & Investments Co. (P) Ltd, 56 SOT 208 (Mum.)(Trib.).
• Business of purchase and sale of shares by assessee being speculation business, loss therefrom was entitled to be set off of against profits of business of company from loans and advances. Refer, Usha Politex Ltd. v. ITO, 217 Taxman 113.
• Assessee involved in trading in shares on own account and on behalf of customers. Income from trading in shares on assessees own account to be treated as speculation income and Carry forward of losses to be allowed accordingly. Refer, Nashik Capital Financial Services P. Ltd. v. Deputy CIT, VOL 25 PG 48.
• Assessee was engaged in business of sale and purchase of shares and government securities. It sold shares of JP and HFCL at loss and set off loss against profit from sale of shares. Sale and purchase were made through a sister concern. There was no physical delivery of shares and shares were sold on dates when prices were lowest. The court held that the Assessing Officer was justified in disallowing loss on sale of shares of JP on ground that it was a sham transaction. And also the Assessing Officer was right in treating loss in sale of shares of HFCL as speculation loss. Appeal of revenue was allowed. Refer, CIT v.Vachanband Investment Ltd, 212 Taxman 131.
• The Assessing Officer the treated the loss on derivative as speculation loss and has not allowed to be set off against the short term capital gains. In appeal Commissioner (Appeals) confirmed the view of Assesing Officer. On further appeal The Tribunal held that in view of amendment with effect from 1-4-2006 the loss suffered by assessee during derivative trading amounted to short term capital loss and same could be set off against short term capital gain during relevant year. Accordingly the appeal of assessee was allowed. Refer, Devendra Exports (P.) Ltd. v. ACIT, 54 SOT 220.
• Tribunal rightly set off the losses from sale and purchase from the income of the assessee from loans and advances. [S. 28(i)]. Refer, CIT v. Narain Properties Ltd, 254 CTR185.
• Assessee company was not involved in the business of sale and purchase of shares, and merely indulging in purchase and sale of shares for investment is not business activity and therefore explanation to S. 73 was not attracted. The loss has to be allowed as short term capital loss. The reasoning of CIT (A ) that there was no pressing need for the appellant company to sell shares within a short span of its acquisition was held to be perverse. Refer, Standipack (P) Ltd v. CIT, 78 DTR 252.
• For the purpose of deciding weather the case of assessee is covered by exception provided in explanation to S. 73, speculation loss is to be excluded while computing business income and arriving at the gross total income. Refer, Paramount Information Systems Pvt. Ltd. vs. ITO, ITAT ‘K’ Bench, Mumbai, ITA No. 921/Mum/2008, decided on 24-2-2010 (BCAJ 42-A, May 2010 pg. 169).
• Where assessee a share broker, had incurred loss on trading transactions of shares entered into on its own Account, and said loss was to be treated as speculation loss as assessee would be deemed to be carrying on speculative business to extent of business of purchase and sale of shares of other companies with in meaning of Explanation to s. 73. Refer, B.L.K. Securities (P) Ltd., 27 SOT 142.
• Explanation to S. 73 is not restricted only to the group of companies, and is applicable to all the companies which carry on business of purchase and sale of shares. Even shares-in-stock on valuation at the close of accounting year resulting in profit or loss, such profit & loss u/s. 28(1) is speculation profit or loss by virtue of Explanation to S. 73. Refer, Prasad Agents (P) Ltd., 213 Taxation 571.
• Assessee’s main business being earning of share brokerage from purchase and sale of shares on behalf of its customers, loss from purchase and sale of shares by assessee itself constituted speculative business and loss arising there from was speculative loss and could not be set off against income from brokerage by virtue of application of explanation s. 73. Refer, Priyasha Meven, 22 DTR 473.
• Any speculation loss computed for Asst year 2006-07 and latter assessment years alone would be hit by the amendment made w.e.f. 1-4-2006 by Finance Act 2005 to section 73(4). Limit of carry forward of subsequent assessment years applies only to such loss. Refer, Virendra Kumar Jain vs. ACIT, ITA No. 1009/Mum/2010 Asst. Year 2006-07 Bench ‘B’ dt. 31-5-2010. (BCAJ July P. 42 (493 (2010) 42A BCAJ).
• Where assessee company was engaged in business of financing, trading in paper, shares and real estate and highest funds were employed in investment activities while principal business was of granting loans and advances, merely because income / loss in dealing in shares in a particular year was more than income / loss from principal business of granting loans and advances, assessee was not covered by deeming provisions of explanation to section 73. Refer, ITO vs. Bijay Paper Traders & Investments Ltd, 38 SOT 578.
• Assessee company earning income from the sale of shares. AO holding that income earned was from speculation and on the fact it was held that income earned was in the nature of capital gains. Refer, Axis Capital Markets (India) Ltd., ITA No. 4098/Mum/2007 BCAJ January (2010) Vol. 41-B..
• Even shares-in-stock on valuation at the close of accounting year resulting in profit or loss, such profit & loss u/s. 28(1) is speculation profit or loss by virtue of proviso to s. 73. Refer, Prasad Agents (P) Ltd., 213 Taxation 571.
• Speculative business is not limited to shares but also to commodity also. Refer, CIT v Periakarmalai Tea & Produce Co Limited, 7 taxmann.com 123.
• Loss arising on account of purchase and sale of shares in another company is to be treated as speculative loss in view of the clear provisions of Explanation to section 73. Refer, Centurion Investment & International Trading Co. (P) Ltd. vs. ITO, 133 TTJ 803.
• Deemed fiction contained in Explanation to section 73 is in relation to the entire activity of purchase and sale of shares wheather or not they affected by actual delivery. Refer, Dartmour Holdings (P) Limited v ITO, 8 Taxmann.com 244.
• It is held that the Explanation to section 73 creates a fiction that the loss suffered by certain companies from the business of purchase & sale of shares shall be deemed to be speculation loss. The definition of speculative transaction in section 43(5) not applicable to Explanation to section 73. The CBDT Circular dated 24.7.1976 cannot be treated as guide for interpretation of section 73 when the provision is very clear and free from any ambiguity. Refer, Paharpur Cooling Towers Ltd. vs. ACIT, 9 Taxmann.com 213.
• Badla charges claimed by the assessee company were rightly treated to be speculative loss in view of Explanation to section 73, since entire share trading activity was deemed to be speculative, provisions of Explanation to section 73 being deeming provisions, section 43(5) cannot override section 73. Refer, Dartmour Holdings (P) Ltd. vs. ITO, 51 DTR 321.
• Where the Company amended its memorandum and articles of association so as to enable it to make money lending as its main business, the loss on account of sale and purchase of shares was allowed to be adjusted against other business income as the assessee’s case fell under exception clause of section 73 of the Act. Refer, CIT vs. Front Line Securities Ltd., 50 DTR 337.
• Loss from valuation of closing stock cannot be excluded while determining the loss from share trading business , therefore , Explanation to section 73 is applicable even to the loss arising from the valuation of closing stock of shares. If the shares are held by the assessee company as investment and not as stock in trade, the second condition of Explanation to section 73 Viz . business of purchase and sale of shares is not satisfied and therefore, capital gain arising from the sale of shares held as investment is not hit by Explanation to section 73. Refer, Krishna Lakshmi Multi Trade (P) Ltd v Asst CIT, 55 DTR 167.
• Loss from speculative transaction cannot be set off against income from property. Refer, Aravali Engineers P. Ltd . v. CIT, 335 ITR 508.
• Finding that principal business of assessee was granting of loans hence, Loss from share dealing could be carried forward and set off against business income. Refer, PCBL Industrial Ltd . v. CIT, 337 ITR 536.
• Assessee was mainly doing business of bill discounting /rediscounting, under contractual obligation between the assessee and parties to the bills. Bills were re discounted and placed only as collateral security. The Tribunal held that activity of bills rediscounting would amount to granting of loans and advances and accordingly, Explanation to section 73 would not be applicable, hence loss on account of sale and purchase of shares could not be treated as speculation losses, though the object clause of memorandum of Association showed that advancing the money was only ancillary object. Refer, Momaya Investments (P) Ltd v ITO, 132 ITD 604
• Assessee, company dealing with transaction of sale and purchase of shares and suffering loss. The Transaction should be treated to be speculative transaction within the meaning of section 73, though it is not speculative nature as there has been actual delivery of share scripts. Business loss arising out such transaction could be carried forward and set off only against speculative transaction and not from any other head. Refer, R.P.G. Industries Ltd. v. CIT, Tax. L. R. 913.
• The department’s submission that in computing the gross total income for the purpose of the explanation to section 73, income under the heads of “Profits and gains of business” must be ignored and /or that the share loss should not be allowed to be set off against the income from any other source under the head “Profits and gains of business” is not acceptable because it leads to an incongruous situation where in determining whether a company is carrying on a speculation business within the meaning of the Explanation, subâ€section (1) of section 73 is applied in the first instance. This is not permissible as a matter of statutory interpretation because the Explanation is designed to define a situation where a company is deemed to carry on speculation business. It is only thereafter that subâ€section (1) of section 73 can apply. Applying the provisions of section 73(1) to determine whether a company is carrying on speculation business would reverse the order of application. Legislature has mandated that in order to determine whether the exception that is carved out by the Explanation applies, a computation of the gross total income has to be made in accordance with the normal provisions of the Act and it is only thereafter that it has to be determined whether the gross total income so computed consists mainly of income which is chargeable under the heads referred to in the Explanation to section 73 or not. Refer, CIT v. Darshan Securities Pvt. Ltd, Mumbai HC.
Hope the above small summary on section 73 will help you in getting some relief from the hardship from the ITD. In case you have any further clarification please mail me at taxbymanish@yahoo.com.
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