TMI Blog2013 (9) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, 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 – Decided against the Revenue. However, during the course of hearing before us, learned counsel for the parties have accepted that the tribunal has not decided the other question i.e. applicability of Explanation to Section 73 of the Act. - matter remanded back to tribunal on this issue. - ITA No. 647/2012 - - - Dated:- 6-9-2013 - Sanjiv Khanna And Sanjeev Sachdeva,JJ. For the Appellant : Mr. Sanjeev Rajpal, Sr. Standing Counsel. For the Respondent : Mr. Nageshwar Rao and Mr. Sandeep S. Karhail, Advocates. ORDER Sanjiv Khanna, J. Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed position were conducted in the National Stock Exchange. 4. Notification dated 25th January, 2006 does not state or specify the date from which the two stock exchanges were recognized. However, the memorandum stipulated that transactions in respect of trading in derivatives in the aforesaid two stock exchanges with effect from 25th January, 2006 shall not be deemed to be speculative transactions. The Assessing Officer relying upon the explanatory memorandum observed that the transactions undertaken between July, 2005 to September, 2005 were before 25th January, 2006 and, therefore, the derivative loss was not eligible under proviso (d) to Section 43 (5) of the Act. The loss was disallowed. 5. CIT (Appeals) observed that Section 43(5)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) to Section 43 of the Act. The said proviso had become applicable with effect from 1st April, 2006. Issue of notification obviously had to take some time as it involved processing and examination of applications etc. This was a matter relating to procedure and the delay in issue of notification or even framing of the Rules was due to administrative constraints. We agree with the tribunal that the delay occasioned, as procedure and formalities have to be complied with, should not disentitle and deprive an assessee, specially, when the transactions were carried through a notified stock exchange. The aforesaid delay is not attributable to the assessee. The notification, therefore, merits acceptance and should be given retrospective effect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which the proviso was enacted, the proviso and the rules became effective retrospectively from April 1, 1952. 9. Reliance placed upon by the Revenue on Shri Udai Punj Vs. CIT, (2012) 348 ITR 98 (Del.) is not apposite as the factual matrix of the said case is entirely different. In the said case, transfer of shares was complete prior to 6th January, 2006 and the trading in the stock exchange had commenced only from 6th January, 2006. It was held that the transfer was not entitled to exemption under Section 10(38) as shares were not listed securities on the date of transfer. The lapse or failure was on the part of the company which had to get the shares listed after complying with the formalities and technical requirements. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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