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TMI Blog2015 (10) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case in making a disallowance ors 5,31,132/- being the loss suffered by the assessee in NCDEX transaction and the ld. CIT(A) has erred in sustaining the same.'' 3.1 The appeal of the assessee is delayed by one day. The ld. AR of the assessee has filed an application dated 15-06-2013 citing the medical reason of the assessee for one day late in filing of an appeal. 3.2 After hearing the ld. DR , we are inclined to condone the delay of one day in filing the appeal by the assessee. 4.1 Brief facts of the case are that the assessee derives income from trading of agricultural produce on whole sale basis and is also a commission agent. During the year he has debited loss of Rs. 5,31,132/- arising from NCDEX transactions. In course of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the transactions has been made through NCDEX terminal but stated that it is not proved that the NCDEX is a recognized stock exchange and notified by the Central Government. 4.3 The CIT(A) after considering the remand report observed that NCDEX terminal is not a recognized stock exchange as per Rule 6DDB r.w.s. 43(5)(d) of the Income Tax Act, 1961. He therefore, relying on the decision of ITAT Jaipur Bench in ITA No. 91/JP/2013 dated 20.02.2013 in case of Prem Prakash Uma Shankar disallowed the loss by holding it to be a speculative loss. 4.4 The ld. Counsel for the assessee contends as under:- ''1. As per section 43(5), speculative transaction means a transaction in which the contracts for the purchase or sale of any commodity incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities were held not be a speculative transactions. NCDEX is also notified as a recognized association for the purpose of section 43(5)(e) vide Notification dt. 27.11.2013. Therefore, transaction of commodity derivative in NCDEX is not a speculative transaction as specifically provided u/s 43(5)(e) w.e.f. 01.04.2014. 3. From the above provisions of the law and the speech of the Finance Minister, it is cleared that introduction of section 43(5)(e) is only explanatory in nature and therefore has retrospective application. For this purpose reliance is placed on the following cases: 4.5 The ld. AR of the placed following case laws:- (i) CIT vs. Vatika Township (P) Ltd. 367 ITR 466 (SC) (ii) Allied Motors (P) Ltd. vs. CIT , 224 ITR 677 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to avoid the notices due to ill-health. The assessee was prevented by sufficient cause for not attending the proceedings. The AO however, levied the penalty of Rs. 10,000/- which was confirmed by the ld. CIT(A). 5.3 The ld. Counsel for the assessee reiterated his arguments as raised before the lower authorities and contended that the assessee being sick could not attend the proceedings and this fact has not been denied. Thus the assessee was prevented by sufficient cause. Thus there is no justification for imposing the penalty. 5.4 The ld. DR supported the orders of the lower authorities. 5.5 We have heard the rival contentions and perused the materials available on record. In our considered view, the assessee gave satisfactory reply exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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