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2005 (1) TMI 588 - ITAT BANGALORESpeculative transactions - loss incurred - delivery of shares - HELD THAT:- The delivery contemplated by section 43(5) need not be actual but even constructive or implied as was held by the Hon’ble Supreme Court in the case of Duni Chand Rataria [1954 (12) TMI 19 - SUPREME COURT]. The Assessing Officer may have to accept the case of constructive or implied delivery as the actual delivery within the meaning of the aforesaid provisions. The assessee has produced copies of Stock Exchange Procedures and Regulations of Settlement of Transactions. All these were not produced at the time of hearing before the Assessing Officer. The Assessing Officer may have to examine the issue in the light of these procedures and should also keep in mind advancement of procedures in relation to trading in shares. We, therefore, in the interest of justice, set aside the entire issue back to the file of the Assessing Officer with a direction to decide the same in accordance with law after going through the settlement procedures in the Stock Exchange as well as the consider the copies of detailed Contract Notes produced by the assessee, which according to the assessee, evidences the fact of constructive delivery. The detailed Contract Notes issued by M/s. Sunil Agencies in respect of all the transactions of the assessee may have to be looked into by the Assessing Officer. The Assessing Officer shall therefore re-decide the issue in accordance with law and keeping in view the principle laid down by the Apex Court in the case of Duni Chand Rataria (supra). Needless to say the assessee shall be given a fair and reasonable opportunity of being heard in the matter. In the result, the appeal is to be treated as allowed for statistics.
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