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2022 (12) TMI 207 - AT - Income TaxRevision u/s 263 - set off of loss in speculation business against business income as against the provisions contained in Explanation to section 73 - as per CIT, assessment order u/s 147 was erroneous since the assessing officer accepted the argument of the appellant that the amendment to explanation to section 73 by Finance Act (No.2) of 2014 was retrospective and hence applied to assessment year 2014-15 - HELD THAT:- As rightly pointed out by the Ld. A.R., the issue relating to applicability of Explanation to section 73 of the Act, which would operate retrospectively from 1.4.1997 though the amendment was made w.e.f. 1.4.2015 as this issue has been considered by this Tribunal in assessee’s own case in assessment year 2013-14 [2018 (9) TMI 2104 - ITAT COCHIN] wherein assessee filed appeal against the order passed by Ld. Principal CIT u/s 263 of the Act as held amendment inserted to Explanation to section 73 by Finance (No. 2) Act, 2014 is to be applied retrospectively from the date of insertion to Explanation to section 73 of the Act. In coming to this view, we take support from the judgment of the Supreme Court in the case of CIT vs. Alom Extrusions Ltd. [2009 (11) TMI 27 - SUPREME COURT] wherein Their Lordships were considering the amendment made by the Finance Act, 2003 by omitting the second proviso to section 43B of the Act w.e.f. 01/04/2004 and bringing about uniformity in the first proviso by equating tax, duty cess and fees with contribution to welfare funds viz. Provident Fund, etc. The Supreme Court held that the aforesaid amendment in section 43B of the Act by Finance Act, 2003 is curative in nature and would therefore apply retrospectively w.e.f. 01/04/1988. In the present case, the principle business of the assessee is trading in shares. Hence, deemed speculative loss from trading in shares is to be set off of against the business income of the assessee. This ground of the assessee is allowed. Being so, same issue cannot be taken up by Ld. Principal CIT in assessment year 2014-15 as this issue was already decided by the Tribunal in assessment year 2013-14. Hence, we decide this issue in favour of the assessee and against the revenue.
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