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2023 (1) TMI 368 - AT - Income TaxDisallowing the NCDEX Trading Loss - treating the same as Speculation Loss - Whether the lower authorities grossly erred in not considering the submission made by the assessee that the proviso (e) to clause 5 of section 43 of the Income Tax Act is applicable from 01-04-2013? - whether Delay in notifying the NCDEX as exchange, cannot nullify the legislative mandate of the enactment. Delay was attributable to the Central Board of Direct Taxes who had failed to issue necessary notification within time - HELD THAT:- As decided in M/S P.D. SEKHSARIA TRADING COMPANY PVT. LTD. [2019 (3) TMI 2011 - ITAT AMRITSAR] the Second proviso which has been inserted by the Finance Act 2018 is curative and therefore is to be treated as came into force from the date from which clause (5) itself was inserted In the statute i.e. with effect from 01.04.2014. Our above view finds support from the decision of the Hon'ble Supreme Court in the case of Allied Motors Pvt. Ltd. [1997 (3) TMI 9 - SUPREME COURT]wherein it was held that a proviso which is designed to eliminate unintended consequence which may cause undue hardship to the assessee and unjust in a specific situation is to be read as retrospective with effect from which the main section was inserted. To the same effect is the decision of Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] wherein decision of Rajeev Kumar Agarwal [2014 (6) TMI 79 - ITAT AGRA] was confirmed wherein it was held that a curative amendment to avoid unintended consequences is to be treated as retrospective in nature even though it may not state so specifically by the statue. It was held that Second proviso to Section 40(a)(la) of the Act must be given retrospective effect of the point of time when the related legal provision was introduced. It is not in dispute that the assessee's transactions in agricultural commodity derivative were otherwise eligible transaction within the meaning of Section 43(5)(e) of the Act, we set aside the orders of the lower authorities on this issue and direct the AO to treat the loss in said transaction as non- speculative business loss and accordingly allow set off of the same from other business income as per law. Thus, this ground of appeal of the assessee is allowed. Disallowing of car expenses, shop expenses, Staff tea expenses and telephone and mobile expenses claimed by the assessee - HELD THAT:- As During the course of hearing, the ld.AR of the assessee has not filed any written submission controverting the findings of the ld. CIT(A). Hence, Ground No. 2 of the assessee is dismissed.
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