TMI Blog2014 (1) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... lume 37, the word 'month' has been described as - When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of the latter month - In common parlance, the 'month' is hardly understood as a calendar month according to the Gregorian calendar, but it by and large means “space of time from a day in one month to the corresponding day in the next - Both the general tenor of the term as well as the clear meaning that could be derived from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1961 and in ignoring circular No.3 of 2006 dated 27.2.2006 issued by Central Board of Direct Taxes, New Delhi? ii) Whether in the facts and circumstances of the case the learned Tribunal has erred in misapplying the provisions of section 94(7) of the Income Tax Act, 1961 and more so when all the three conditions as stipulated in section have not been satisfied at the same time and more so when the assessee has bought the units on 26.12.2003 (i.e. the record date) and the same cannot be construed as buying 'within a period of three months prior to the record date' as stipulated in section 94(7) (a) of the Income Tax Act, 1961 and units bought on 26.12.2003 were sold on 26.3.2004 i.e. after three months and one day and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said application was allowed by the Tribunal vide order dated 16.9.2008 and the case was heard on 22.9.2008 but no order thereupon was passed by the Tribunal. Aggrieved by the order dated 6.6.2008 passed by the Tribunal, the assessee is before this court through the present appeal. 3. Learned counsel for the assessee submitted that the Tribunal was wrong in declining the claim of the assessee on account of loss on sale of certain shares to the tune of Rs. 3,67,995/- by treating the same to be speculative loss in view of the provisions of section 43 (5) of the Act. According to the assessee, the same was to be treated as short term capital loss in view of Section 43(5) (d) of the Act. The other contention raised by learned counsel was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the day 26.3.2004, when the units were sold was to be counted, as three months from 26.12.2003 would expire on that date and the said authorities were right in applying the provisions of Section 94(7) (b) of the Act and disallowing the claim of short term capital loss made by the assessee. 5. After hearing learned counsel for the parties, we do not find any merit in the appeal. 6. Adverting to the first question, it may be noticed that Section 43 (5) (d) of the Act was introduced by Finance Act 2005 w.e.f 1.4.2006. The said provision would thus be applicable from assessment year 2006-07. Once that was so, the benefit as claimed by the assessee that it was entitled to set off short term capital loss, has been rightly declined by the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter month (k). If a period of one calendar month includes the last day of February there must be twenty nine or twenty eight days, according as the year is or is not leap year (I). In the aforesaid volume, an illustration has been given which reads thus: (k) A period of a month which begins on the 28th or any later day in January must in the ordinary year terminate on 28th February. 11. Further the Hon'ble Apex Court in M/s Himachal Techno Engineers's case (supra) in para 11 had noticed as under:- 11. Section 3(35) of the General Clauses Act, 1897 defines a month as meaning a month reckoned according to the British calendar. In Dodds v. Walker - (1981) 2 All ER 609, the House of Lords held that in calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "reckoned" is equivalent of the term "calculated" or counted." If the legislature wanted the month to mean only a compact unit of a calendar month, the normal definition would have been as a British Calendar month or a calendar month. The elaborate explanation given in the definition of the term 'month' and particularly the reference to calculation clearly and pointedly suggest that what is intended to be referred to by the term is a space of time between the two dates of the two contiguous months. Xx xx xx xx xx xx xx xx xx 6.No doubt, there is the judgment of the learned Single Judge of this court referred to above, supporting the submissions made on behalf of the petitioner tenant, but we find that the learned Single Judge has not p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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