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All About Speculative Business and Speculative Transactions

(https://taxguru.in/income-tax/speculative-business-speculative-transactions.html)

 Manish Harchandani (https://taxguru.in/author/manish2952/) |

| Income Tax (https://taxguru.in/category/income-tax/) - Articles (https://taxguru.in/type/articles/)
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13 Jan 2020 (https://taxguru.in/2020/01/13/)
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Article explains how Speculative Business is Distinct

Business, What is speculative transaction, What shall not
deemed to be speculative transactions, What is Eligible
Transaction for security derivative, Recognised stock
exchange for Section 43(5), Recognised association for
Section 43(5), What are the Eligible Transaction for
Commodity derivative, Do Single transaction constitute
speculative business, Treatment of Losses in Speculation
business and other related Income Tax Provisions.
(https://taxguru.in/wp-content/uploads/2020/01/Business-and-Speculative-Transactions.jpg)

Article further explains Which one of these are Speculative Transaction- F&O in Shares, F&O in Commodities,
Intraday Trading, Normal Trading in Shares / Delivery Base, Forward Contract in Currency, Arbitrage trading and
Dabba Trading.

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Speculative Business is Explanation 2 to Section 28 of the Income-tax Act, 1961 (“Act”) provides – Where
Distinct Business speculative transactions carried on by an assessee are of such a nature as to constitute
a business, the business (hereinafter referred to as “speculation business”) shall be
deemed to be distinct and separate from any other business.

Why Distinct Business? Explanation 2 to section 28 specifically provides that where an assessee carries on
speculative business, that business of the assessee must be deemed as distinct and
separate from any other business. This becomes necessary because section 73
provides that losses in speculation business unlike other business, cannot be set-off
against the profits of any business other than a speculation business. Likewise, a loss in
speculation business carried forward to a subsequent year can be set-off only against
the profit and gains of any speculative business in the subsequent year. Profits and
losses resulting from speculative transaction must, therefore, be treated as separate
and distinct from other profits and gains of business and profession.
What is speculative “speculative transaction” means a transaction in which a contract for the purchase or
transaction sale of any commodity, including stocks and shares, is periodically or ultimately settled
(https://taxguru.in/income- otherwise than by the actual delivery or transfer of the commodity or scrips. Section
tax/speculative-transactions- 43(5)
note.html)

What shall not deemed to be As per Section 43(5) (https://taxguru.in/income-tax/section-435-cbdt-notifies-trading-

speculative transactions commodity-derivatives-nse.html):
a. a contract in respect of raw materials or merchandise entered into by a person in the
course of his manufacturing or merchanting business to guard against loss through
future price fluctuations in respect of his contracts for actual delivery of goods
manufactured by him or merchandise sold by him
b. a contract in respect of stocks and shares entered into by a dealer or investor therein
to guard against loss in his holdings of stocks and shares through price fluctuations
c. a contract entered into by a member of a forward market or a stock exchange in the
course of any transaction in the nature of jobbing or arbitrage to guard against loss
which may arise in the ordinary course of his business as such member
d. an eligible transaction in respect of trading in derivatives referred to in clause (ac) of
section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) – [Security
Derivative Transaction] carried out in a recognised stock exchange
e. an eligible transaction in respect of trading in commodity derivatives carried out in a
recognised association, which is chargeable to commodities transaction tax under
Chapter VII of the Finance Act, 2013 (17 of 2013)
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What is Eligible Transaction “eligible transaction” means any transaction –

for security derivative a. Carried out electronically on screen-based systems through a stock broker or sub-
broker or such other intermediary registered under section 12 of the Securities and
Exchange Board of India Act, 1992 (15 of 1992) in accordance with the provisions of the
Securities Contracts (Regulation) Act, 1956 (42 of 1956) or the Securities and Exchange
Board of India Act, 1992 (15 of 1992) or the Depositories Act, 1996 (22 of 1996) and the
rules, regulations or bye-laws made or directions issued under those Acts or by banks or
mutual funds on a recognised stock exchange; and
b. which is supported by a time stamped contract note issued by such stock broker or
sub-broker or such other intermediary to every client indicating in the contract note the
unique client identity number allotted under any Act referred to in sub-clause (A) and
permanent account number allotted under this Act;

Recognised stock exchange – NSE

– BSE
What is Eligible Transaction “eligible transaction” means any transaction,—
for Commodity derivative a. carried out electronically on screen-based systems through member or an
intermediary, registered under the bye-laws, rules and regulations of the recognised
association for trading in commodity derivative in accordance with the provisions of the
Forward Contracts (Regulation) Act, 1952 (74 of 1952) and the rules, regulations or bye-
laws made or directions issued under that Act on a recognised association; and
b. which is supported by a time stamped contract note issued by such member or
intermediary to every client indicating in the contract note, the unique client identity
number allotted under the Act, rules, regulations or bye-laws referred to in sub-clause
(A), unique trade number and permanent account number allotted under this Act;

Recognised association – MCX Stock Exchange Ltd.

– United Stock Exchange of India Limited
A single transaction cannot The explanation 2 to Section 28 provides for the speculation business as separate and
constitute speculative distinct business while Section 43(5) defines what is speculative transaction. From the
business reading of these two sections it is quite clear that unless the speculative transactions
constitute business, the provisions of Section 73 cannot apply. Thus, unless the loss
pertains to speculative business the provisions of section 73 cannot be applied. The use
of the plural Speculative ‘transactions’ in explanation 2 to Section 28 clearly shows that
in order to constitute speculative business within the terms of the explanation, a single
transaction would not be sufficient, unless there is a systematic or organised course of
activity or conduct on the part of the assessee, a single transaction cannot constitute
business. Further where a transaction is settled, otherwise than by actual delivery, the
transaction would be a speculative transaction. But merely because it is a speculative
transaction it will not by itself render it a speculative business for which there should be
more than one speculative transactions carried out by the assessee as per explanation 2
to Section 28 of the Income Tax Act, 1961.
Moreover, High court of Bombay in the case of Commissioner of Income tax vs. Kamani
Tubes Ltd. 207 itr 0298, (1994) 75 Taxman 0055 followed the Supreme Court ruling in
the case of Commissioner of Income tax vs. Shantilal P. Ltd. (1983) 144 itr 0057 and
held that;
“It is abundantly clear that failure to accept the goods in terms of the contract on the
stipulated date amounts to a breach of contract and in such a case, the other party is
entitled to receive compensation for loss or damage caused by such breach. In the case
of a contract for the sale of goods, the measure of damages upon a breach by the buyer
is the difference between the contract price and the market price at the date of the
breach. Such payment cannot be termed as “payment made on periodical or ultimate
settlement of the contract for purchase and sale of the commodity otherwise than by
actual delivery or transfer of the commodity” contemplated by s. 43(5) of IT Act. That
would happen only in cases falling under s. 63 of the Contract Act. This is a case of
breach of contract and the payments made by the assessee are by way of damages
caused thereby. It clearly falls in illustration (c) of s. 73. It is not a case of performance
of the contract within the meaning of s. 63 of Contract Act. The payment by the
assessee, therefore, cannot be termed as a “speculative transaction” within the meaning
of s. 43(5). Even if in a given case, a particular transaction is held to be a speculative
transaction within the meaning of s. 43(5) such a finding would not resolve the
controversy regarding the applicability of Expln. 2 to s. 28 and s. 73 without a further
finding that the assessee carried on business in such speculative transactions. It is only
where the speculative transactions carried on by an assessee are of such a nature as to
constitute business that Expln. 2 to s. 28 gets attracted and such business, which is
referred to as “speculative business”, is deemed to be distinct and separate from other
business and s. 73 becomes applicable to the set off and carry forward of loss from
such business. There is a perceptible difference between “speculative transaction” and
“speculation business”. An isolated transaction of settlement of a contract otherwise
than by actual delivery of the goods might amount to “speculative transaction” within the
meaning of s. 43(5) but in the absence of something more to show that the nature of the
transactions was such as to constitute a business, it cannot be termed as “speculation
business (https://taxguru.in/income-tax/for-the-purpose-of-computing-deduction-us-
10b-speculation-business-cannot-be-considered-as-business-of-undertaking.html)”
which has been treated as distinct and separate from other business.
 Treatment of Losses in (1) Any loss, computed in respect of a speculation business carried on by the assessee,
Speculation business shall not be set off except against profits and gains, if any, of another speculation
Section 73 of the Act business.
(2) Where for any assessment year any loss computed in respect of a speculation
business has not been wholly set off under sub-section (1), so much of the loss as is not
so set off or the whole loss where the assessee had no income from any other
speculation business, shall, subject to the other provisions of this Chapter, be carried
forward to the following assessment year, and—
(i) it shall be set off against the profits and gains, if any, of any speculation business
carried on by him assessable for that assessment year; and
(ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be
carried forward to the following assessment year and so on.
(3) In respect of allowance on account of depreciation or capital expenditure on
scientific research, the provisions of sub-section (2) of section 72 shall apply in relation
to speculation business as they apply in relation to any other business.
(4) No loss shall be carried forward under this section for more than four assessment
years immediately succeeding the assessment year for which the loss was first
computed.
Explanation.—Where any part of the business of a company (other than a company
whose gross total income consists mainly of income which is chargeable under the
heads “Interest on securities”, “Income from house property (https://taxguru.in/income-
tax/faqs-income-house-property.html)“, “Capital gains” and “Income from other
sources”, or a company the principal business of which is the business of trading in
shares or banking or the granting of loans and advances) consists in the purchase and
sale of shares of other companies, such company shall, for the purposes of this section,
be deemed to be carrying on a speculation business to the extent to which the business
consists of the purchase and sale of such shares.

Conclusions;

F&O in Shares Not a speculative business if transaction of F&O is eligible transaction, as discussed
above and carried out in Recognised Stock Exchange

F&O in Commodities Not a speculative business if transaction of F&O is eligible transaction, as discussed
above and carried out in Recognised Association

Intraday Trading As there is no delivery of shares, it will be always treated as speculative business
irrespective of fact whether carried on recognised stock exchange or off market

Normal Trading in Shares / Normal Business, either taxed under the head of Capital Gain or PGBP depends upon
Delivery Base intention of holding and nature of business

Forward Contract in Currency Not a speculative transaction If contract in respect of raw materials or merchandise
entered into by a person in the course of his manufacturing or merchanting business to
guard against loss through future price fluctuations in respect of his contracts for actual
delivery of goods manufactured by him or merchandise sold by him

Arbitrage trading Arbitrage trading involves simultaneously buying and selling the same asset across two
(https://taxguru.in/finance/all- different markets, profiting from the price difference. Hence, technically delivery is taken,
about-arbitrage.html) therefore it is normal business and not a speculative transaction

Dabba Trading Speculative transaction – However this kind of business is illegal and prohibited by SEBI

Author is a Chartered Accountant and can be reached at harchandanimanish@gmail.com

Disclaimer: The contents of this document are solely for informational purpose. It does not constitute
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the existence of mistakes and omissions herein is not ruled out. Neither the author nor Taxguru.in and its
affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete
information in this document nor for any actions taken in reliance thereon.

(Republished with Amendments)

Tags: Capital Gain (https://taxguru.in/tag/capital-gain/), section 43 (https://taxguru.in/tag/section-43/), section 73

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 7 Comments
Madhuri says:

Sir, there is income from other sources and Speculative loss. so the ITR Form is ITR 3. But what should I select in the”
Nature of Business and Trade Name”

 December Reply (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/?replytocom=322083#respond)

26, 2021 at

7:38 pm (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/#comment-322083)

Poonam Datir says:

Sir,
If there is loss in F & O but Profit in Speculation Business & STCG can we set off the loss against Speculation Business &
STCG
Please reply
 August 29, Reply (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/?replytocom=161865#respond)

2020 at 3:12

pm (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/#comment-161865)

RAKESH BHANDARI says:

i have entered into one sale transaction of share on 10-Oct-2017.

in the above transaction delivery we was not completed due to requirement of signature of joint holder of demat account.
as the joint holder was not present in india at that time i had to revert my sale transaction which in turn amount to
purchase of the said share on the same day i.e. 10-Oct-2017
in the above transaction i had to bare loss of rs 2,00,000
so how should i show this loss in my income tax return
as speculation business loss but as per the article one single transaction oes not amount to loss
or to adjust the loss in income from other sources as i have interest income in the same year i.e. F Y 2017-2018

 August 13, Reply (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/?replytocom=121268#respond)

2018 at 6:01

pm (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/#comment-121268)

Mitul Makwana says:

Dear Sir,
If a person makes loss on Speculative Transaction (Intraday Trading) and Loss in Non Speculative Transaction (Trading in
F&O). Is he liable to tax audit under Sec. 44AB?

 March 21, Reply (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/?replytocom=113203#respond)

2018 at

12:45 pm (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/#comment-113203)

Krishnan says:

Sir
My question is whether an individual carrying on intraday online trading in shares (only in cash segment and not in
derivatives)frequently throughout the year, also bought and sold under BTST /go long and close the long positions during
the year, whether can maintain two ledger account separately for (i) for speculation and (ii) for short term CG? In other
words, whether the assessee has the discretion for such accounting?
Query 2: In view of Explanation 2 to Sec 73, Whether sec 73 i.e carry forward of speculation losses , are also applicable to
individuals or only applicable to companies?

 August 4, Reply (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/?replytocom=100279#respond)

2017 at 8:12

am (https://taxguru.in/income-tax/speculative-business-speculative-transactions.html/#comment-100279)
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