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TMI Blog2013 (1) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ,62,163/- and Rs. 68,25,182/- as speculative loss respectively. This loss was not allowed to be set off against the business income. 6. Brief facts of the case as noted by ld. CIT (A) in his order in para 2.1 to 2.6.5 at pages 2 to 16 are as under :- " 2.1 Facts of the case are that in the case of Tulip group of Jaipur to which the assessee belongs a search was conducted on 23/01/2009. Various books of accounts, loose papers and incriminating documents and assets have been found and seized as per annexure prepared during the course of search. On the basis of search action, notice u/s 153A was issued on 05.03.2009 for the assessment year 2003-04 to 2008-09 which was duly served upon the assessee on 09.03.2009. In response to this, the assessee has furnished return of income for the assessment year 2008-09 and 2009-10 on 30.09.2009 declaring income at Rs. Nil and Rs. 1,18,07,540/- respectively. As the main issue involved in both the appeals are common, these appeals are decided by this common order. Facts for both years are broadly same. However for the sake of convenience, facts and figures of A.Y 2008-09 are mentioned herein below in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transactions. In case of arbitrage, transactions are carried out by the member at different markets or at different exchanges with a view to gaining from the differences in the prices prevailing at both the markets or exchanges. The assessee vide notice u/s 142(1) of the Act dated 16/12/2010 was required to furnish details of transactions carried on by him in the ordinary course of business and details of transactions in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of business as a member of MCX for claiming benefit under clause (c) of section 43(5) of the Act. 2.4 In compliance to this notice assessee submitted replies which are broadly as under:- (i) In reference to your query regarding allowability of loss of Rs.1,30,61,314/- under the head Prakash Chand Jain (MCX), the amount representing business loss in the MCX business which were adjusted with other business income. In this regard, we submit as follows : That the assessee is an individual and partner in M/s. TULIP, apart from this, he is also member of Multi-Commodity Exchange (known as MCX) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the practices prevalent and business module designed by the MCX, a member can buy or sale any commodity transacted on said exchange for any quantity according to the available margins and for any future date, out of options provided by the exchange. Mostly MCX provides three future optional dates. Further at the time of buy or sale, member have to choose one date on which delivery of the commodity shall be made or taken, further member always have right to settle the purchase transaction by making sale before opted date and sale transaction by making purchase before opted date. Further, actual delivery of the commodity is also possible in the market. In this type of forward market members enters into a forward transaction and to safe guard their interest jobbing and arbitrage is carried out, such jobbing and arbitrage is carried to protect the that interest, which is entered in by the members, with a view to minimize the future probable loss, looking to the prevailing price of the commodity. Assessee is not only a broker, infact he is member of exchange and the scope of work of member is much more wider than that just of a broker. (iii) The loss un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a matter of fact that assessee is a member of MCX. MCX is an exchange provides opportunity to it's member to trade commodity on future dates, therefore, the MCX is a forward market and assessee under consideration is a member of forward market qualifying the first criteria of exception provided in clause (c) of section 45(3) of Income-tax Act, 1961. The forward market itself implies a market of future providing opportunity of trading in future. We also reproduced here the definition of forward market given in the lexicon law dictionary as follows : "Forward Market - a market in which participants agree to trade some commodity, security or foreign exchange at a fixed price at some future date." Perusal of the transactions entered by the assessee on the MCX on his own account shows that he has made first purchase/sale transaction of a commodity for a particular quantity to be settled either by delivery or by cross transaction on a particular future date for a fixed price determined at the time of transaction. Thereafter, on every day, the difference between prevalent price on particular date with fixed price of entered transaction for futur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; (vi) Similar view has been taken by Hon'ble ITAT Delhi, in Komal Exports Vs. Assistant Commissioner of Income Tax, 19 SOT 602 (2008). Similar judgments was pronounced in CIT Vs. Shri Sharwan Kumar Agarwal, [2001] 249 ITR 0233. (vii) The assessee under consideration was given membership of MCX w.e.f. 28.03.2007 and the effective date for permitting to do operation was 29.08.2007 and since, the Cl. (c) of S. 43(5) is applicable on member of forward exchange. The transaction entered into by the assessee before the period 29.08.2007 and even after with M/s Trade swift Comdex Private Limited & Moti Commodity Futures Private Limited not as a member have been shown and considered as Speculation Business Loss which amounted to Rs. Rs. 3,41,435/- for the year under consideration and not set off of same loss has been claimed. It is clear from the legal provisions that a transaction can be fall under clause (c) of section 43(5) only if it is entered by the member of forward market, hence return of the previous year as well current year have been filed correctly and according to the legal provision and factual position of assessee as narrated herein before. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain is member of the MCX. It is also relevant to mention that a proprietor cannot do any business with himself because he can represent only one physical entity. From the foregoing discussion, it is clear that all transactions have been carried out by Mr. Prakash Chand Jain, as member and not as a client, therefore, jobbing loss arose by transacting such transactions is as member and generated during the regular course of business, hence falls under explanations 'C' From the facts narrated hereinbefore and clarification made, we hope that you will find on fact that these transaction have been carried not on client id, therefore, cannot fall under clause - (d) of Section 43(5)." Further, it is an admitted fact that your good self has already considered the transaction is in the nature of jobbing, in this regarded we rely upon the decision of Hon'ble ITAT Banglore in the case of First Securities Pvt. Ltd. Vs. SCIT, 2009, wherein, it was held as per provisio (c) to sec 43(5) the transactions in nature of jobbing not to be treated as speculative transaction and once a transaction is not speculative, any los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market exchange which was controlled and monitored by the forward market commission. The loss was incurred by the assessee as a member of IPSTA due to jobbing to guard against the loss arisen in the ordinary course of its business. Therefore, the case of the assessee squarely fall within the purview of clause (c) of proviso to section 43(5) and was not a speculative loss. 2.6.1(ii) The other case relied by the assessee was CIT v. Sh. Sharwan Kumar Agarwal (2001) 249 ITR 233 The facts of the case are that the assessee a share broker and member of UP stock exchange, Kanpur carried on transactions with other members in the nature of jobbing or arbitrage. The Hon'ble High Court held that the onus was on the revenue to establish that the assessee was not entitled to exception covered by clause (c) of the proviso to section 43(5) of the Act. It was further mentioned that the revenue has not sought any question to be referred in regard to proviso, clause (c) to sub section 5 of section 43(5) of the I.T. Act. The ratio of this case is not applicable to the facts of the case of the assessee. In that case proper material was not gat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduced by Finance Act, 2005 w.e.f. 1.4.2006 is clarificatory in nature and therefore, retrospective in operation ? The Special Bench observed that speculative transaction is a transaction in which contract for purchase and sale of any commodity is settled otherwise than by actual delivery. It is not in dispute that in the case of transaction in derivatives, the transaction is always settled otherwise than by actual delivery. However, it was contended by the Counsel that Sec. 43(5) is applicable only in respect of contract for purchase and sale of commodity. His contention was that the derivative is not a commodity and, therefore, Sec. 43(5) would not be applicable at all. The Departmental Representative has furnished the printout taken from the Website of SEBI explaining the term "derivative", which reads as under :- "The term "Derivative" indicates that it has no independent value, i.e. its value is entirely "derived" from the value of the underlying asset. The underlying asset can be securities, commodities, bullion, currency, live stock or anything else. In other words, Derivative means a forward, future, option or any other hybrid contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be deemed to be speculative transactions within the meaning of Sec. 43(5). If the transaction in derivatives does not fall within the definition of 'speculation transaction' u/s. 43(5), then there was no question of exempting certain type of transaction in derivatives from the scope of speculative transaction u/s. 43(5). If it is held that the transaction in derivatives does not fall in Sec. 43(5), it will make clause (d) and Explanation thereto below Sec. 43(5) introduced by Finance Act, 2005 to be redundant. It cannot be presumed that the Government has introduced a clause, i.e. clause (d) as well as Explanation thereto, which was redundant and infructuous. In view of above, the Special Bench held that the term 'derivatives' in which underlying asset is shares, will fall within the meaning of 'commodity' used in Sec. 43(5) of the Act. The next question is whether clause (d) of Sec. 43(5) introduced by Finance Act, 2005 w.e.f. 1.4.2006 is clarificatory and, therefore, retrospective in nature. It is evident that the transaction in derivatives in exempted from the purview of speculative transaction u/s. 43(5) because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchange, is not covered in the definition of business carried on during regular course as specified in clause (c) of proviso to section 43(5)of the Act as there is no risk involved in brokerage business. Further, the assessee also has not made such claim. In the light of above discussion it is held that the assessee carried on business of jobbing in various commodities on MCX in his individual capacity. The regular business, a necessary ingredient to qualify for exclusion from speculation transaction in terms of clause (c) of proviso to section 43(5) is missing. 2.6.4 A.O. further observed that However, the case of the assessee is covered clause (d) of proviso to section 43(5) of the Act which stipulates as under- [(d)an eligible transaction in respect of trading in derivatives referred to in clause [(ac)] of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) carried out in a recognised stock exchange;] shall not be deemed to be a speculative transaction. [Explanation. - For the purposes of this clause, the expressions- & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, now if the trade is done through these stock exchanges, the trade will not be regarded as Speculative Transaction with effect from 25/01/2006. Now the CBDT has issued Notification No. 46/2009, dated 22-5-2009 by which Multi Commodity Exchange of India Ltd (MCX) has been recognized under section 43(5) (d) which means that the trade in derivatives through MCX exchange will now be regarded as Business transaction and therefore, the loss, if in unfortunate event of incurring loss will be allowed to be adjusted with any other business income or from other heads. If you trade through, NCDEX, you will not have this facility. The notification 46/2005 dated 22-5-2009 is given below In exercise of the powers conferred by clause (ii) in the Explanation to clause (d) of the proviso to sub-section (5) of section 43 of the Income-tax Act, 1961 (43 of 1961), read with rule 6DDB of the Income-tax Rules, 1962, the Central Government hereby notifies MCX Stock Exchange Ltd. as a recognized stock exchange for the purpose of the said clause with effect from the date of publication of this notification in the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT (A) have been recorded in paras 4 to 8 at pages 24 to 34 which are reproduced here as under :- " 4. I have considered the submission of the ld. A.R. and have perused the material on record. Brief facts of the case are that the appellant was given the membership of MCX on 28.3.2007 and was permitted to do operation w.e..f 29.8.2007. Prior to that the appellant was engaged in speculative business through Trade Swift Comdex Pvt. Ltd and also through M/s Moti Commodities Futures Pvt. Ltd. and incurred loss of Rs.3,41,435/-. for F.Y 2007-08 relevant to A.Y 2008-09. This loss has been rightly admitted as speculative loss and has been carried forward. Apart from that from 29.8.2007 onward, the appellant being the member of MCX, himself entered into speculation transaction of commodities on MCX and it has incurred a whopping loss of Rs. 1,34,62,163/- in A.Y 2008-09 & Rs. 68,25,182/- in A.Y 2009-10.This loss has been treated to be non-speculative by the appellant claiming that same is covered under the exception provided in clause (c ) of section 43(5), whereas the A.O. has held this to be loss on account of speculative transaction by holding that same is neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness as such member or d) An eligible transaction in respect of trading in derivatives referred to a clause[(ac) ] of section 2 of the Securities Contracts Regulation Act 1956 (42 of 1956) carried out in a recognized stock exchange] shall not be deemed to be a speculative transaction" 4.2. The legislative intention behind inclusion of this exception (c) was that many times the actual user of the metal or other commodity in the ordinary course of his business of purchasing the metal or commodity had to sometime enter into a contract of forward market. To guard against any loss at the time of actual purchase of the metal or commodity in future, sometimes due to volatility in the market. this transaction is settled by jobbing which would be in the nature of speculative transaction, but this particular transaction done in the particular circumstances for guarding against the loss which may arise in the ordinary course of his business of purchase of metal or commodity, has been excluded from the purview of section 43(5) that too by a deeming provision. This was done so that the actual user or regular buyer of the metal or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant himself mentioned in the written submission and has appreciated the fact that clause (c) envisages that there should be a contract in the nature of jobbing and secondly that contract must be to guard against the loss which may arise in the ordinary course of his business, then such transaction of jobbing, though they are speculative in nature, but will be deemed to be nonspeculative. However the A.R. of the appellant has failed to identify as to which transaction of speculative nature by way of jobbing was entered into to guard against the loss expected to arise in which other transaction carried out in the ordinary course of business. A.R. has then tried to argue that such speculative transaction entered by the member is part of regular business carried out as member. If that is so, then also the second category of the transactions i.e the transactions in which loss was expected, which have to be guarded against, are not identified by A.R and are at all missing. 4.5. It is seen from the facts already discussed and also further mentioned below, that all the transactions running into thousands and thousands in number carried out by the appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchased, has been sold on the very same day. Thus all these primary transactions are speculative in nature. These transactions have not at all been done to guard against the expected loss arising in ordinary course of business of purchase or sell of metal or commodity by the member of MCX. 4.8. It is seen and also uncontroverted that all the transactions which are entered into by the appellant in his own name in MCX have been settled either periodically or ultimately otherwise then by actual delivery. Thus these all transactions will be within the purview of the speculative transaction as defined in section 43(5). It is seen from the details of transactions of 15 entries of loss furnished by the A.R., on being asked by the undersigned, that these speculative transactions are for Gold, Crude oil, Silver, Copper and Zinc etc. The appellant has never taken delivery of any of the commodities/metal, nor has ever given delivery of any of the commodity/metal during the two years under consideration except one or two unit of gold once/twice. 4.9. Another important aspect noticed is that appellant has entered into short sell on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch can by no stretch of imagination be covered under clause (c). Even other transaction of forward purchases has been squared off on the same day and thus those are also speculative in nature and also cannot be covered under sub clause (c). Total loss incurred on 14.11.2007 is Rs. 2, 32,757/-. 4.12. On 2.1.2008, appellant entered into 155 transactions of short sale of gold, 5 transaction of short sale of silver and total loss incurred on 2.1.2008 was Rs. 21,19,680/-. On 22.1.08, appellant entered into 290 transaction of short sale of gold and 15 transaction of short sale of copper and loss incurred on the day was Rs. 34,28,310/-. 5. Thus it is evident that the facts of the case of the appellant clearly proves that the transactions entered into by appellant on MCX in his own account are speculative transactions within the meaning of section 43(5) and the appellant has failed to established by giving details of jobbing transaction as well as details of transaction done in the ordinary course of his business where loss was expected and then linkage of jobbing transaction which was done to guard against such loss (as has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions are also not covered within clause (d) of section 43(5) as discussed by him from para 9.3 to para 9.7. Moreover, in any case, the A.R. of the appellant has also not given any specific arguments and reasons and explanation that his case is covered under clause (d), as the MCX was not the recognized exchange for clause (d) till notification dtd. 22.5.2009, i.e in the period F.Y 2007- 08 and 2008-09 relevant to A.Y 2008-09 and A.Y 2009-10. A.R. has just mentioned that in case of conflict between the two provisions such conflict should be resolved in favour of assessee. However, it is seen by the undersigned that there is no conflict between the provisions of clause (c) and clause (d). Moreover, in any case, the appellant is not at all covered at the relevant point of time in clause (d) because MCX was not the recognized stock exchange at the relevant point of time and the same was recognized vide notification dated 22.05.2009 for the purpose of clause (d) of section 43(5). 8. In view of the facts and circumstances and the legal position on the issue under consideration, claim of loss on account of speculative transaction in commodities amounting to Rs. 1,34, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who then sell the commodity purchased by assessee of future date and whatever the profit or loss attracted on that account after deducting certain charges, MCX settle the account of the member. In support of this contention a sample copy of contract specifications of Gold by MCX was filed. A copy of certificate membership of MCX proving that assessee is a member of MCX was also filed. Sample copy of future date transactions were also filed by ld. A/R and has stated that all the details were filed before AO and ld. CIT (A). 10. We have heard rival submissions and considered them carefully. It will be useful to reproduce the written submissions filed on behalf of the assessee as written submissions filed before ld. CIT (A) has not been reproduced in this order. The written submissions filed on behalf of the assessee at pages 2 to 17 are as under :- " 1. As per the rules prescribed by MCX, there are five different types of membership available and it is an admitted fact that the appellant under consideration is a member in MCX having Trading-Cum-Clearing Membership, and such member can do business on his own account and it is not necessary to do the business on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore opted date and sale transaction by making purchase before opted date. In the contact specification rules of MCX the entire working mechanism as stated herein above is available for ready reference and had discussed before lower authorities. Further, actual delivery of the commodity is also possible in the market. In this type of forward market members enters into a forward transaction and to safe guard their interest jobbing is carried out, such jobbing is carried to protect the that interest, which is entered in by the members, with a view to minimize the future probable loss, looking to the prevailing price of the commodity. Appellant is not only a broker, in fact he is member of exchange and the scope of work of member is much more wider than that just of a broker. 2. The loss under consideration is a regular business loss and not results of speculative transaction as per the definition of speculative transaction given in the section 43(5) of the Income Tax Act, 1961. To clarify the nature of transaction and legal provision for considering a transaction as speculative, we reproduced the legal provision in this regard provided in section 43(5) as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et or a stock exchange. (ii) Such contracts must be made in course of any transaction in nature of jobbing or arbitrage. (iii) Such contract must be to guard against loss which may arise in the ordinary course of his business, as such member. It is relevant here to examine the facts of the appellant with the legal provisions contained in above referred provisos. (i) It is a matter of fact that appellant is a member of MCX. MCX is an exchange provides opportunity to it's member to trade commodity on future dates, therefore, the MCX is a forward market and appellant under consideration is a member of forward market qualifying the first criteria of exception provided in proviso (c) of section 45(3) of Income-tax Act, 1961. The forward market itself implies a market of future providing opportunity of trading in future. We also reproduced here the definition of forward market given in the lexicon law dictionary as follows : "Forward Market - a market in which participants agree to trade some co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on speculations". A jobber sells and buys on his own account and takes advantage of every turn of price In the instant case, assessee is a dealer by virtue of membership and buys and sells the commodity on every movement of the price of the commodity, which makes his activity as jobbing activity (i) Trading-cum-clearing member means a person who is admitted by the Exchange as the member of the Exchange conferring a right to trade and clear through the Clearing House of the Exchange as a clearing member and who may be allowed to make deals for himself as well as on behalf of his clients and clear and settle such deals only. Since, his ordinary course of business as a member is to trade in MCX market along with acting as clearing house for his clients, as per the rules of MCX, he is trading in the same market, and therefore it is his ordinary course of business as such a member. Moreover, when the main object of the member is well defined, and he is working in accordance to the same, it needs to be concluded that he is working as in his ordinary course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, which may sometimes arise, where they are forced to do the transaction of jobbing only to guard against the loss which otherwise would have arisen due to purchase being entered into at a higher price and thereby such transaction entered into sometimes, though being speculative in nature, but are deemed to be non-speculative. Now obviously the transaction in the ordinary course of business of such member should be to actually purchase the metal or commodity or to actually sell the metal or commodity and obviously to take or give delivery. 4.3 With this background, we have to consider the facts of the appellant case..." (i) Perusal of the above shows that analysis have been done based on certain alleged legislative intention whereas strict and literal requirement to qualify a contract to be covered under proviso (c) of Section 43(5) was furnished before him. Rather entire emphasis has been made on such alleged legislative intent. Further it appears that the word used in said proviso ordinary course of business has been inferred that there would be some other business alleged as actual user of me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to proviso (c). In fact all provisos of said section cover different nature of transaction and have its own purpose and intent. Further, while examining the facts not only these facts have been examined with respect to wrong interpretation of the said proviso but also emphasis have been made on actual delivery whereas it is clear from the fact that appellant have right to settle the transaction through delivery also. It is further pointed out that there is loss on account of various short sells which cannot be covered under proviso (c), we have already clarified that there is no such requirement in said proviso that there should be first purchase or first sell. It only requires that (i) contract must be entered only by member of forward market, (ii) contract must be in course of transaction in nature of jobbing, and (iii) to guard against loss, which may arise in the ordinary course of his business as such member. Under the facts and circumstances it is clear that that legal provision has not rightly interpreted and consequently facts of the case have also not examined in right perspective. a. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings. Therefore, to that extent, finding is incorrect. 4. In this regard, we place our reliance on following judgments:- (a) Hon'ble ITAT Delhi, in Komal Exports Vs. Assistant Commissioner of Income Tax, 19 SOT 602 (2008), has laid down a principal in such type of transactions stating that: The question for consideration is whether the loss incurred by the assessee has arisen out of speculative transaction or not. The expression 'speculative transaction' has been defined in s. 43(5). As per said section speculation transaction means a transaction in which a contract for the purchase or sale of any commodity including stock and shares, is periodically or ultimately settled otherwise than any actual delivery or transfer of the commodity or scrips. Proviso (c) of provision to s. 43(5) excepts hedges in the nature of 'jobbing' or an 'arbitrage' entered into by a member of a forward market or stock exchange to guard against loss which may arise in the ordinary course of his business as such member. A jobber sells or buys on his own account and takes advantage of every turn of the price. Jobbing takes place betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market due to jobbing to guard against the loss arisen in the ordinary course of its business. Frequency of transaction which have been done by the assessee and loss incurred establish that the transactions were in the nature of jobbing and loss incurred establish that the transactions were in the nature of jobbing and loss was incurred in the course of business by a member of forward commodity market. The AO had directly made inquiry from IPSTA and in reply it was categorically accepted that assessee had entered into transaction with it. The transactions so entered were for safeguarding its interest against the future price fluctuation. In the facts and circumstances of the case of the assessee squarely falls within the purview of cl. (c) of proviso to s. 43(5). Hence the loss incurred by the assessee connote be said to be speculative loss. Similar judgments was pronounced in CIT Vs. Shri Sharwan Kumar Agarwal, [2001] 249 ITR 0233. (b) Further, it is an admitted fact that Ld AO has already considered the transaction is in the nature of jobbing, in this regard we rely upon the decision of Hon'ble ITAT Bangalore in the case of First Securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is covered under Proviso (d) of the provision to the Section 43(5) of the Act Further, according to the requirement of the said proviso, transactions must be entered on the recognised exchange, whereas, MCX have been recognised by the CBDT w.e.f. 22.5.2009, therefore, the transactions under consideration is not qualified to be covered under said proviso. In this regard, it is submitted that firstly, the facts of the case is covered under proviso (c) because it is a case of member of forward market which is specific requirement of the said proviso. Whereas, proviso (d) is in respect to trading in derivatives, it is important to note here that it is not required in said proviso that said trading must be done by the member means it may be done by anybody. Moreover, appellant is not dealing in derivatives rather dealing in commodities. Therefore, to conclude that the facts of the case is covered by the proviso (d) of Section 43(5) is because of wrong assumption of fact. Under the facts and circumstances, it is required to reverse the factual finding of the Ld. A.O. as wel as CIT (A) and consequently, to delete the addition made on this account." 11. After g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a future date. Both these transactions are done by stock exchange and whatever the profit or loss is there that has been settled by the stock exchange in account of the assessee member. No doubt remains that assessee had done its transaction on regular basis which cannot be termed that they are not regular course of business as provided in clause (c) of section 43(5). The ld. CIT (A) also accepted that transaction has been done but in his view this transaction either falls under the main clause of section 43(5) or clause (a). Section 43(5) is about speculative transaction. Therefore, ld. CIT (A) has treated this transaction as speculative in nature and in clause (a) a contract in respect of raw material or merchandise entered into by a person in the course of his manufacturing or merchandising business to guard against loss through future price fluctuation in respect of his contract for actual delivery of goods manufactured by him or merchandise sold by him. This clause cannot be applied on the assessee as assessee is not doing the business of manufacturing or merchandising business but doing the transaction for himself of future date through stock exchange and this falls under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the transaction entered into by assessee through stock exchange are of jobbing nature then they fall under clause (c). Similar view has been expressed in case of Komal Export, 19 SOT 602 (Del) and also Bangalore Bench of the Tribunal in case of M/s. First Securities Pvt. Ltd., and in case of LDK Shares and Securities Pvt. Ltd. These cases have been discussed in the written submissions. Therefore, we are not repeating again. Regarding the decision in case of Shree Capital Services Ltd. in ITA No. 1294/Kol/2008 relied upon by Assessing Officer, it is seen that this decision is in fact falls under clause (d) and not clause (c). Therefore, the decision of Kolkata Bench in case of Shree Capital Services Pvt. Ltd. (supra) is not applicable in the facts of the present case. In view of these facts and circumstances and in view of various case laws , we are of the considered view that case of assessee falls under clause (c) of section 43(5) and, therefore, the loss incurred by assessee has to be treated as business loss eligible for set off against other business income of the year. Accordingly we direct the Assessing Officer to allow the claim of the assessee for both the years. 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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