The assessee collected toll fees and also carried on business of shares and derivatives. It claimed set off in respect of the loss suffered by it in the transaction in derivatives against the income from its infrastructure business under the head of income from business or profession under section 28. The Assessing Officer disallowed the claim. The Commissioner (Appeals) held that the assessee was not entitled to claim set off against the income from a non-speculative business. The Tribunal confirmed his order. On appeal allowing the appeal the Court held that the Tribunal could not have confirmed any addition on transaction in derivatives on recognised stock exchange as defined in section 43(5)(d) with reference to the Explanation given to section 73 which was applicable to speculative transaction. The Assessing Officer did not consider the effect of insertion of the proviso to section 43(5) in his order. The Commissioner (Appeals) had considered the Explanation to section 73 and had erroneously observed that income from share trading was to be regarded as speculative income. However, the set-off being speculative loss could not be set off against the regular business income assessed by the Assessing Officer as claimed by the assessee. The Commissioner (Appeals) did not consider the contention of the assessee that in view of the amended provisions of section 43(5)(d), the trading of shares in derivatives was to be assessed as the regular business and not speculative business and therefore, the loss if any in transactions in derivatives was required to be set off against the other heads of income. The assessee had not claimed any set-off of the loss suffered in the transactions in shares where delivery was actually effected but had claimed set-off of the loss suffered in respect of transactions in derivatives in view of the amendment in law with effect from April 1, 2006. None of the authorities below had considered and dealt with the effect of insertion of proviso (d) to section 43(5) by the 2005 Act with effect from April 1, 2006 the AY in question being 2009-10, i. e., after insertion of clause (d) to the proviso to section 43(5). Transactions in derivatives carried out by the assessee after April 1, 2006 therefore, were not speculative transactions. Referred Snowtex Investment L td. v. P CIT (2019) 414 ITR 227 (SC). Court held that Tribunal was not justified in confirming any addition on transactions in derivatives on a recognised stock exchange as defined under section 43(5)(d) with reference to the Explanation given to section 73 which was applicable to speculative transactions. By virtue of insertion of clause (d) to the proviso to section 43(5) the transactions in respect of the trading in derivatives would not be speculative transactions. Therefore, the assessee was entitled to claim set off of the loss suffered by it in the transactions in derivatives against its income from infrastructure business under section 70. (AY. 2009-10)