TMI Blog2009 (5) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... ng-term capital loss of ₹ 3,89,33,847 which had been carried forward to the subsequent years. In the asst. yr. 2003-04 the assessee had short-term capital gain of ₹ 35,59,607 which it had set off against the carried forward long-term capital loss of asst. yr. 2000-01 and the balance long-term capital loss amounting to ₹ 3,53,74,241 had been carried forward to the subsequent year. The AO however did not accept the claim-as, in his opinion, the amended provisions from asst. yr. 2003-04 as per which long-term capital loss could be set off against only long-term capital gain would be applicable in relation to carried forward loss of asst. yr. 2000-01. He did not accept the claim of the assessee that the amended provisions will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed business loss for asst. yr. 2000-01 which it had claimed to be set off against the income from asst. yr. 1960-61. As per the provisions applicable for asst. yr. 1950-51, the unabsorbed loss could be carried forward from year to year till the loss was completely absorbed. But the relevant provisions were amended by the Finance Act, 1957 as per which the unabsorbed business loss could be carried forward only upto 8 years. Hon'ble Supreme Court held that law in-force in asst. yr. 1960-61 would be applicable and that there was no question of the assessee possessing any vested rights under the law as stood before the amendment CIT(A) following the-said judgment held that the carried forward long-term capital loss could not be set off aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; for a particular year could be carried forward to the subsequent assessment year to be set off against any income under the head 'Capital gain' assessable for that year and so on. However, as per the amended provisions of s. 74 applicable from asst. yr. 2003-04, short-term capital loss in a particular year could be carried forward and set off against any income from capital gain in the subsequent assessment year. But the long-term capital loss for any year could be carried forward and set off only against a long-term capital gain for that year, and so on. 3.1 The amended provisions of s. 74 which are relevant for the purpose of this appeal are reproduced below as a ready reference. 74 Where in respect of any assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had vested right in the long-term capital loss of asst. yr. 2000-01 to be carried forward and set off against any income from capital gain in the subsequent year as per the provisions applicable to asst. yr. 2000-01. Since the said provisions were saved and not destroyed, the carried forward and set off of loss under the head capital gain would be governed by the provisions relating to the asst, yr. 2000-01. Reliance has been placed on the judgment of Hon'ble Supreme Court in the case of Shah Sadiq Sons (supra). In that case the assessee had losses from speculation business in the asst. yrs. 1960-61 and 1961-62 which under the provisions of s. 24(2) of the IT Act 1922 could be carried forward and set off against income of the firm in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute is not repealed but the provisions are only amended. This is because when a' statute is repealed the provisions are not changed and remain as such and therefore the vested rights under the original provisions of the repealed Act are saved (and) continue to be in force but in case the statute is not repealed and only the provisions are amended, it is the amended provision which will apply and the year of applicability will depend upon the language used in the amending provisions. In this case the language of the amended provision of s. 74 applicable from asst. yr. 2003-04 provides that loss computed under the head 'Capital gain' in respect of any assessment year will be governed by the amended provisions. It does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against income for asst. yr. 1960-61. Similarly while dealing with assessment for asst. yr. 2003-04, it is the s. 74 in force in that year which will be applicable. As per the amended provisions of s. 74 applicable from asst. yr. 2003-04 long-term capital loss for 'any assessment year' could be carried forward and set off only against long-term capital gain in the subsequent year. Therefore while dealing with carry forward and set off of losses in asst. yr. 2003-04, loss computed for any assessment year will be governed by the amended provisions applicable from asst. yr. 2003-04. We are thus of the considered opinion that long-term capital loss of 2000-01 could be set off only against long-term capital gain in asst. yr. 2003-04 in w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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