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TMI Blog2016 (5) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case and in law, the ld. CIT(A) has erred in granting relief to the assessee on account of speculation loss amounting to Rs. 46,16,944/-. 2. On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in granting relief to the assessee on account of belated payments of Provident Fund amounting to Rs. 11,255/-. 3. On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in granted relief to the assessee on account of commission expenses amounting to Rs. 65,664/- 3. The brief facts of the case are that the assessee is engaged in the business of manufacturing of copper alloys and ingots. The assessee e-filed its return of income on 26.09.2009, declaring total income at Rs. 3,44,39, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proviso to subsection (5) of 43 by the Finance Act, 2005, the transactions in respect of trading derivative referred to in clause (ac) of Section 2 of the Securities Contracts (Regulation) Act, 1956, carried out in a recognized Stock Exchange are eligible transaction for claiming loss and shall not be deemed to a speculative transaction. Relying on certain case laws, the CIT(A) has rightly allowed the appeal of the assessee. Similar issue came up before the Co-ordinate Bench of this Tribunal in the case of Vimal Oil & Foods Ltd vs. ACIT, in ITA No.2392/Ahd/2011, wherein on similar set of facts, ITAT decided the issue in favour of the assessee by observing as under:- "5. In view of the above, we are of the view that assessee's der ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Hence, these are purely procedural mechanism adopted for the same when a rule or provision does not affect or empower any right or create an obligation but merely relates to procedural mechanism, then it is deemed to be retrospective unless such an inference is likely to lead to an absurdity. If the amendment is made in procedural mechanism, it will apply to all the proceedings pending or to be initiated. Once in the statute, it has been provided that w.e.f. 1.4.2006, an eligible transaction carried out in a recognized Stock Exchange will not be treated as speculative transaction, then simply because procedural mechanism has taken a long time to recognize the Stock Exchange, it will not lead to an inference that the same would be app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to deduction of such amount in computing income referred to in section 28 if such sum was not credited by assessee to employees' account in relevant fund or funds on or before due date as per explanation to section 36(1)(va) of Act. Merely because Second Proviso to Section 43B of the Act in which there was a reference to due date as defined in explanation below clause (va) of sub-section (1) of section 36, it cannot be held that even section 36(1)(va) was amended and/or even explanation below clause (va) of sub-section (1) of section 36 was also deleted. It can be said that there was a reference to explanation below clause (va) of sub-section (1) of section 36 in second proviso of section 43B (which has been deleted by Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Consequently, all these appeals are allowed and impugned judgement and orders passed by tribunal in deleting disallowances made by AO was hereby quashed and set aside and disallowances of respective sums with respect to Provident Fund / ESI Fund made by AO was hereby restored. Questions raised in present appeal are answered in favour of revenue. With this, all these appeals are allowed. (Para 8)" 5.1 In the light of above legal discussion, we set aside the order of the CIT(A) in this issue and restore that of Assessing Officer. Accordingly, this ground of Revenue is allowed. 6. Next issue is with regard to the commission expenses amounting to Rs. 65,664/-. During the course of assessment proceedings, the Assessing Officer observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought to our knowledge on behalf of the Revenue on this factual matrix. Therefore, in view of above, we are of the view that the Assessing Officer was not justified in making such addition which has rightly been deleted by the CIT(A). Thus, the order of the CIT(A) in this regard is upheld and this ground of the Revenue is dismissed. 7. In the result, the appeal filed by the Revenue is partly allowed. CO No.185/Ahd/2012 8. The solitary ground of Cross-objection raised by the assessee reads as under:- The learned CIT(A) has erred in law and in facts in confirming disallowance of Rs. 1,63,010/- made by invoking the provisions of Section 40(a)(ia) of the Act, ignoring the fact that relevant TDS was deposited by the assessee prior to due ..... X X X X Extracts X X X X X X X X Extracts X X X X
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