TMI Blog2017 (6) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... have the effect of altering the law applicable to a claim in litigation at the time when the act was passed. Accordingly, respectfully following the precedent, we set aside the orders of the authorities below and decide the issue in favour of the assessee. - ITA no.5269/Mum./2012 - - - Dated:- 1-6-2017 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER, AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri. Nitesh Joshi For The Revenue : Shri. Kailash Kanojiya ORDER PER: SHAMIM YAHYA This appeal by the assessee is directed against order of Ld. CIT-A dated 22.12.2011 and pertains to assessment year 2007-08. 2. The grounds of appeal read as under: This Appeal is against the Order u/s.143(3) passed by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay. Accordingly the delay is condoned. 6. In this case on the impugned issue A.O held under:- It is seen from the computation that the assessee has shown loss of ₹ 17312/- under the head profits and gains of business after setting off the speculation profit of A.Y.2007-08 of ₹ 5,27,331/ - by the carry forward speculation loss of A.Y.2001-02. Section 73(4) of the I.T.Act, 1961, clearly states that no loss shall be carry forward under this section for more than four assessment years immediately succeeding the assessment year for which the loss was first computed. The above subsection came into force w.e.f. 01.04.2006. It is amply clear that speculation loss of A.Y. 2001-02 cannot be carried forward after A.Y 2005- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration or the amended provision relating to four years will be applicable in this case. In the case of Govinddas Others 103 ITR 123, the Supreme Court held that:- Now it is a well settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provided or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure . The Hon'ble court further held that the retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culation profit of the year under consideration. This ground of appeal is therefore, dismissed. 8. Against above order is in appeal before us. We have heard both the counsel and perused the records. 9. Learned Counsel of the assessee submitted that similar issue was considered by the Special Bench of the ITAT in the case of Kotak Mahindra Capital Co. Ltd., v/s. ACIT 18 ITR (Trib)213 Special Bench vide order dated August 10, 2012. The Special Bench has held as under:- The first and most elementary rule of construction is that it has' to be assumed that the words and phrases of a technical legislation should be used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning the phrases and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year following such succeeding assessment year and shall be set off against income if any under the hear capital gains assessable for that assessment year. The plain language and grammatical construction used in the provisions of section 74(1) as amended with effect from April 1,2003, makes it clear that the restriction imposed therein in terms of setting off long-term capital loss only against long-term capital gains and not against short-term capital gains is applicable only in. relation to the long-term capital loss incurred by the assessee in the assessment year 2003-04 and subsequent years and is not applicable to the long-term capital loss relating to and brought forward from periods prior to the assessment year 2003-04 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at both the decisions referred by learned CIT(A) have been considered by the Special Bench in the above mentioned case. Following the above precedent, we hold that assessee s claim of set off of speculation loss of A.Y.2001-02 against the speculation income of the year under consideration has to be allowed. As held by the Special Bench which followed the decision of Apex Court in the case of Govinddas Others vs. ITO (supra), (a decision of larger Bench of the Apex Court comprising three of their lordships) that 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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