CIT Vs. BEENA RATHI

JUDGEMENT

(1.) IN this appeal by the revenue the following questions of law has been framed for our consideration.

(2.) IN first appeal, the commissioner of income tax (the CIT(A)) upheld the order of the assessing officer and by application of section 43(5) of the income tax act held her income from dealing in share to be speculation income and not chargeable to tax as short term capital gains as declared by the respondent -assessee.

(3.) IN second appeal, the tribunal by its order dated 25 -09 -2009 allowed the respondent assessees appeal. The tribunal held on facts that there is no dispute that share transaction entered into by the respondent -assessee was settled by actual delivery of scrips from the pool account of broker. The tribunal held following the decision of Rajasthan High court in the matter of Sripal Satpal v. ITO : (2008) 22 (I) ITCL 453 (Raj -HC) : (2008) 217 CTR 337 (Raj) that actual delivery of goods for a transaction to be non speculative, need not be by the assessee himself but could also be by his agent. On the aforesaid view, the tribunal held that the transaction of purchase and sales of shares were ultimately settled by actual delivery of scrips to the buyer from the pool account of the broker. In the circumstances, the tribunal concluded that transaction is not speculation transaction on application of section 43 (5) of the Act.