Tribunal held that in the statement of facts filed with the memorandum of appeal before the Commissioner (Appeals), the assessee had specifically stated that it had carried out its transactions in derivatives in the futures and options segments of the National Stock Exchange. The Commissioner (Appeals) completely overlooked the factual position while observing that the assessee had entered into over the counter derivatives transaction and not in any recognised stock exchanges, while treating it as speculative loss under section 43(5) . Further in the subsequent years the Assessing Officer had consistently allowed the assessee’s claim of marked to market loss. Thus the marked to market loss of Rs. 5,96,510 was not in the nature of speculation loss. ( AY.2007-08, 2008-09)