1 itxa2303-10 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2303 OF 2010 PAS Securities Private Limited ..Appellant. Versus The Income-tax Officer, Ward 4(2)(1), Mumbai ..Respondent. Mr.Sameer G. Dalal for the appellant. Ms.Padma Divakar for the respondent. CORAM : J.P. Devadhar & Smt.R.S. Dalvi, JJ. DATE : 18th April, 2011. P.C. : 1. Heard. Admit on the following substantial questions of law. A) Whether, in the facts and circumstances of the case, and in law, the Tribunal was right in holding that the loss incurred by the appellant on account of dealing in derivatives (Futures & Options) was a speculative loss under the provisions of Section 43(5) of the Income-tax Act, 1961 ? B) Whether, in the facts and circumstances of the case, and in law, the Tribunal was right in holding that the clause (d) inserted in the proviso in section 43(5) of the Income-tax Act, 1961 by the Finance Act, 2005 was prospective in nature ? C) Whether, in the facts and circumstances of the case, and in law, the Tribunal was right in holding that depreciation under Section 32 of the Income-tax Act, 1961 was not allowable to the appellant on the Bombay Stock Exchange Membership Right acquired by it after 1-4-1998 ? 2 itxa2303-10 2. In so far as first two questions are concerned, learned counsel for the parties state that both the questions are answered in favour of the Revenue and against the assessee by the decision of this Court in the case of The Commissioner of Income Tax, Central – IV, Mumbai V/s. Shri Bharat R. Ruia (HUF), being Income Tax Appeal No.1539 of 2010 decided on 18-04-2011. 3. In so far as third question is concerned, learned Counsel for the parties state that the same is covered in favour of the assessee and against the Revenue by the decision of the Apex Court in the case of Techno Shares & Stocks Limited V/s. Commissioner of Income-tax reported in [2010] 327 ITR 323 (SC). 4. The appeal is accordingly disposed off by answering the first two questions in favour of the Revenue and third question in favour of the assessee. No costs. (Smt.R.S. Dalvi, J.) (J.P. Devadhar, J.)