TMI Blog2006 (1) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... gal provisions of Explanation 2 to section 28 and section 43(5) of the Act. 2. The ld. DR referred to page 4 of the assessment order and pointed out that the assessee has purchased and sold 41,200 shares of Rencal Chemicals Ltd. in the same settlement year through Raj Investments, Mumbai. The details of these are given as under: Sold for you Bought for you Amount Qty. Rate Date Amount Qty. Rate Dt. 5000 50.75 25-11-1994 4000 65.95 29-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,702 on the above transaction. The transaction entered into is of speculative nature and, therefore, constitutes speculative business as per Explanation (2) to section 28. Referring to the definition of speculative transaction as given under section 43(5) that it means transaction in which a contract for purchase or loss of any commodity, including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrip. The assessee has sold 41,200 shares without taking the delivery of the shares. No evidence for the delivery of the shares was filed by the assessee, therefore, the Assessing Officer was correct in not allowing the speculation loss. The assessee has incurred loss in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein above in the submissions of the ld. DR which were not controverted by the ld. AR. Section 43(5) defines the speculative transaction. According to which the speculation means 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 the actual delivery or transfer of the commodity or scrip. No evidence has been produced or brought on record that there had been delivery of shares sold by the assesee. In our opinion the onus lie on the assessee to prove that that the assessee has actually taken the delivery of the shares sold by him and specifically delivered the same. In the absence of the evidence, in our opinion the transaction entered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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