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In the present case, the assessee-company has treated the entire activity of purchase and sale of shares, which comprised of both the delivery based and non-delivery based trading as one composite business and accordingly claimed set off of the loss incurred in delivery based trading against profit derived from derivative trading. If the ratio of the judicial pronouncements discussed above is applied to the facts of the assessee’s case, it follows that the aggregation of the share trading loss and profit form derivatives transaction should be done before application of Explanation to s. 73 of the Act and since there was surplus profit on such aggregation. Explanation to s. 73 would not be applicable. I, therefore, agree with the view taken by the learned Accountant Member.

Shanti Prime Publication Pvt. Ltd.

Sec. 43(5) & 73 of Income-tax Act, 1961— Loss— Explanation to section 73 does not differentiate between "delivery based transactions" and "derivative transactions in F&O segment" and the same applies to the entire business of purchase and sale of shares, whether such trading is delivery based or non-delivery based, whether there is profit or loss from such business and in the case of assessee, the assessee-company has treated the entire activity of purchase and sale of shares, which comprised of both the delivery based and non-delivery based trading as one composite business and accordingly claimed set off of the loss incurred in delivery based trading against profit derived from derivative trading. Aggregation of the share trading loss and profit form derivatives transaction should be done before application of Explanation to s. 73 and since there was surplus profit on such aggregation, explanation to s. 73 would not be applicable— Lohia Securities Ltd. vs. Dy. CIT [2020] 203 TTJ 929 [TM] (KOL).

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