ITAT : Share broker's loss on shares held as investments, a 'speculation loss’, not STCL

Mumbai ITAT treats loss suffered by assessee-company (engaged in share broking business) on sale of shares held by it as investments, as speculation loss for AY 2012-13, upholds Revenue’s invocation of Explanation to Sec. 73; Rejects assessee’s stand that Explanation was not applicable as loss was offered as short term capital loss [‘STCL’] in the return of income and thus, cannot be assessed as ‘speculative loss’; ITAT clarifies that considering the word ‘any’ used in the explanation, restrictive meaning  should not be given to phrase 'any part of the business', holds that as assessee was not covered by exclusions contemplated therein, Explanation to Sec. 73 was clearly attracted, cites Calcutta HC ruling in Arvind Investments Ltd.; Distinguishes assessee’s reliance on  Gujarat HC ruling in Apollo Vikas (P) Ltd. wherein  the adjudication was in context of 'income' earned by assessee on sale of shares and it was held that Sec. 73 was applicable only in context of losses; Separately, with respect to loss on F&O transaction, ITAT finds force in assessee’s contention that F&O transactions cannot be categorized as speculative transactions in light of amendment to Sec. 43(5)(d), however, in absence of evidence on record to prove that transactions qualify as 'eligible transactions' as contemplated by Expl (1) to Sec. 43(5), restores matter back to CIT(A)directing assessee to substantiate its claim.:ITAT