TaxTMI 
TaxTMI 
2013 (7) TMI 363
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....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, will the word actual delivery under the provisions of Section 43 (5) will mean the actual delivery to the assessee and not to his agent. (3) Whether the learned Tribunal was justified in ignoring the fact that a Bank Draft of Rs.19,80,020/- dated 29th March, was sent to the broker which includes the brokerage of Rs.45,495/- and therefore he acted as an agent of the appellant. (4) Whether the learned Tribunal was justified in not allowing the claim of short term capital loss against the long term capi....
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....rial 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 first appellate authority, where it was stated that the identity of the share broker was established. Share dealing business were done in the name of the company M/s Vikas Somani Securities Pvt. Ltd. The registration number of share brokers with SEBI is INB-030878935. The PAD used giving distinctive numbers of share purchases and sold were given by the broker M/s Vikas Somani Securities Pvt. Ltd. and the broker has confirmed the receipt of demand draft of Rs.19,80,020/- The conclusion reached by the assessi....
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.... 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 capital gain represents profit from sale of shares of very reputed companies like Bajaj Auto Ltd., Telco and TISCO. The short term capital loss represents loss on sale of shares of little known companies. During investigation, it was found by the assessing officer that the alleged capital loss have been incurred in the transaction of shares but the share broker has never insisted for any payment. In other words, the assessee has not made any payment for the purchase of the shares to the brokers. So, the....
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....e, 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 actually entered in the purchase and sale of the shares, it was ultimately settled otherwise without taking delivery and, therefore, the said transaction is a speculative transaction as per Section 43(5) of the Act. Section 43 (5) of the Income-tax Act, 1961 on reproduction reads as under:- S.43(5) "speculative transaction" to mean a transaction in which a contract for the purchase or sale of any commodity, including stocks and shares, is periodically or ultimately settled otherwise than by....