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TMI Blog2013 (7) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... . - 60 of 2007, Income Tax Appeal No. - 70 of 2007 - - - Dated:- 9-7-2013 - Hon'ble Sibghat Ullah Khan And Hon'ble Dr. Satish Chandra,JJ. For the Appellant : Pradeep Agrawal For the Respondent :- D.D.Chopra ORDER (Delivered by Hon'ble Dr. Satish Chandra, J) Both the present appeals have been filed by the assessee as well as Revenue under Section 260-A of the Income Tax Act, 1961, against the judgment and order dated 09.02.2007 passed by the Income Tax Appellate Tribunal, Lucknow, in I.T.A. No.735/Luc/2001, for the assessment year 1997-98. On 03.07.2007, a Coordinate Bench of this Court has admitted the appeal on the following substantial questions of law:- (2) Whether on the facts and in the circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A). He further submits that the transaction was done with M/s Vikas Somani Securities Pvt. Ltd., Calcutta who has supplied the necessary information pertaining to the share dealing to the Director Investigation, Calcutta vide letter dated 10.03.2000 and copy was forwarded to the assessee vide letter dated 06.06.2000. In the said letter, the share broker has admitted the receipt of a cheque of Rs.19,80,020/-. According to the learned counsel, the findings of the A.O. are based on irrelevant material and conclusions are based on conjectures, surmises and suspicious only. It is submitted that the short term capital loss was accepted as genuine by the first appellate authority. For this purpose, he read out the order passed by the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the entire contract. The word "periodically" or "ultimately" makes it clear that the provisions of section 43(5) are applicable where a part of the contract or the entire contract has been settled otherwise than by actual delivery of the goods" Further, he also relied on the ratio laid down in the case of D.M.Wadhwana Vs. Commissioner of Income Tax (1966) 61 ITR 154 (Cal.) but the same was related to the Income Tax Act, 1922 and certainly, it is not applicable to the present Act. Lastly, he made a request to restore the order passed by the CIT. On the other hand, Sri D.D.Chopra, learned counsel for the respondent has justified the impugned order passed by the Tribunal. He submits that the assessee has shown the long term capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce materials suggesting actual delivery. Therefore, the transactions were completed otherwise than by actual delivery or transfer of shares. The transactions were speculative transactions as defined in section 43(5) and the loss resulting from the share transactions was a speculation loss and not a loss arising from business." Lastly, he justified the A.O. order as well as Tribunal order. We have heard both the parties at length and on perusal of record, it appears that in the instant case, the assessee has made no payment for the purchase of the shares though the identity of the broker was established. The broker has not shown a single profit pertaining the assessee during the relevant period. At the most, even if the assessee had act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the actual delivery or transfer of the commodity. The said section is not restricted to a contract where the settlement is only in respect of the entire contract. The word "periodically" or "ultimately" makes it clear that the provisions of section 43(5) are applicable where a part of the contract or the entire contract has been settled otherwise than by actual delivery of the goods. From the record, it also appears that there was no actual delivery taken by the assessee at any point of time in respect of the shares on which the assessee has claimed the alleged short term capital loss. When neither any payment was made nor any delivery was taken, then the transaction can not be held genuine specially when there was no DEMET Accounti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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