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2012 (8) TMI 339 - AT - Income TaxSet off of unabsorbed capital loss - application of provisions of section 74 as amended by Finance Act, 2002 to unabsorbed capital losses relating to the AYs prior to the AY 2003-04 - STCG of ₹ 2.21 crores earned during the year set off against the long-term capital loss relating to AY 2001-02 - reference to Special Bench - Held that:- Section 74(1), as substituted w.e.f. 01.04.2003, uses the present tense and refers to the long-term capital loss of the current year. The said provisions thus are applicable to the long-term capital loss of AY 2003-04 onwards and not to the long-term capital loss relating to the period prior to AY 2003-04. The set-off of long-term capital loss relating to a period prior to AY 2003-04 is governed by s. 74(1) as it stood prior to the amendment made by the Finance Act, 2002. Therefore, assessee is entitled to claim set off of any brought forward long term capital loss relating to AY 2001-02 against short-term capital gain. The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right otherwise than as regards the matters of procedure. See Shah Sadiq and Sons (1987 (4) TMI 2 - SUPREME COURT), Govindas & others vs ITO (1975 (12) TMI 144 - SUPREME COURT) - Decided in favor of assessee Interest on Income Tax Refund - Held that:- It being a statutory obligation would be assessable under the head “ Income from other sources” Interest on excess refund - Section 234D - Held that:- Explanation 2 has been inserted in sec.234D by the Finance Act, 2012 with retrospective effect from 1.6.2003 clarifying that the provisions of sec.234D shall also apply to the assessment year commencing before the first day of June, 2003 if the proceedings in respect of such assessment year is completed after the said date. Since proceedings in respect of the said AY 03-04 has been completed on 30.11.2005, we are of the view that the assessee is liable to pay an interest u/s.234D
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