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2016 (12) TMI 407 - HC - Income TaxSpeculation Loss - Trading in future and options - AO not allowing loss to be set off with the Profit of Share Trading in future and option segment - whether amendment is curative in nature and should be deemed to have a retrospective operation? - Held that:- In the case before us, we are concerned with the assessment year 2008-09 and the amendment carving out an exception in the explanation to Section 73 for the companies, which have dealings in shares as their principal business, was made effective only on 1st April, 2015, that is to say, almost 8 years after the assessment year under consideration. We, as such, are not inclined to take notice of the earlier submission. Further, it appears from the Memorandum explaining the provisions in the Finance Bill, 2005 (by which, inter alia, clause (d) to the proviso in sub-section (5) of section 43 was proposed to be inserted) that the Legislature deliberately refrained from enacting a corresponding amendment to the explanation in section 73. The submission that the amendment introduced on 1st April, 2015 is curative has not impressed us for the simple reason that the amendment to Section 43(5) was made by the legislature with effect from 1st April, 2006. For long 9 years they allowed that situation to continue not because of any accidental error or omission on their part. That was a well considered step. We are, as such unable to hold that the amendment made with effect from 1st April, 2015 shall have a retrospective effect on the plea that it is curative in nature. That can only be done by legislature and not by us. In the year 2006, dealings in derivatives ceased to a speculative transaction. But dealings in shares by a company, whose principal business was dealing in shares, were deliberately retained within the ambit of speculative transaction and has ultimately been lifted only in the year 2015. It cannot be said that this was a step to remedy any unintended consequences. The fact that in 2006 dealings in derivatives were treated as deemed business, but the dealings in shares were not similarly treated, is a pointer to show that the legislature intended to treat them differently. There is, as such no question of any unintended consequence. We are, as such, unable to hold that the amendment is curative in nature or for that reason has a retrospective effect.
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