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2. On the facts and circumstances of the case, the CIT(A) erred in allowing the loss of Rs. 14,28,000/- on account of loss on sale of 1 of 20 A. Y. 2001-02 shares of Zee Telefilms Ltd by holding it to be genuine trading loss.

3. On the facts and circumstances of the case, the CIT(A) erred in directing the AO to treat the share trading loss of Rs. 65,55,659/- as trading loss by holding that constructive delivery or passive delivery to the d-mat account of the agent is also treated as delivery and such transaction move out of the purview of section 43(5) of the Act and cannot be termed as speculative transactions.

We have perused the submissions advanced by both the sides in the light of the records placed before us.

5.4 During the year assessee has claimed loss of Rs.65,55,659/-as trading loss in securities. Assessee claims that the delivery of these shares were not taken but were kept in the demat account of broker from whom shares were purchased, because assessee did not make the payment to broker for the purchases made. As a confirmation of the purchases, assessee placed in the paper book, certificates issued by broker at pages 78, 79, 83, 94. The broker in these certificates has provided certain details regarding number of shares purchased on behalf of assessee, script name, date of purchase, settlements number and the cost. Assessee has placed purchase bills in respect of the scripts. Ld. CIT (A) treated the loss incurred by assessee on sale of such shares as business loss since these were constructive purchases, made by assessee through broker by placing reliance upon the decision of coordinate bench of this Tribunal in CIT vs. Dr.S.Thilagavathy (supra) and Smt.Jayshree Roychowdhury vs. ACIT (supra).