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2017 (6) TMI 79 - ITAT MUMBAI

2017 (6) TMI 79 - ITAT MUMBAI - TMI - Claim of set off of speculation loss of A.Y.2001-02 against the speculation income - Held 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 (1975 (12) TMI 144 - SUPREME COURT), (a decision of larger Bench of the Apex Court comprising three of thei .....

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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 Commissioner of Income-tax (Appeals)-21, Mumbai and relates to Assessment Year 2007-2008. 1) Both the lower au .....

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on loss for set off in future years - ₹ 1,73,127/-. The Appellant craves leave to add to, alter or amend, the above Grounds of Appeal as and when advised. 3. At the outset we note that there is a delay of 141 days in filing the appeal. 4. For the condonation of delay of 141 days, assessee has submitted an affidavit wherein it has been prayed that the delay was on account of wrong advice of the consultant who was of the opinion that since learned CIT(A) has relied upon Hon ble Supreme Court .....

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ssessee 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. .....

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I have considered the facts of the case. The appellant earned speculation loss in A.Y. 2001-02. Such speculative loss of ₹ 1, 73,127/- for A.Y. 2001-02 had been adjusted by the appellant against the speculation profit of the year of ₹ 5,27,331/-. Section-73 of the Income Tax Act deals with loss in speculation business. As per sub-section (4), no loss shall be carried forward under this section for more than eight assessment years immediately succeeding the assessment year for which .....

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he condition of eight years as applicable to A.Y. 2001-02 will be applicable in the year under consideration 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 give .....

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CIT reported in 121 ITR 921, judgement dated 10.10.1979. The Hon'ble Supreme Court held a under:- Loss - Carry forward and set off - Law applicable - Before amendment by Finance (No.2) Act, 1957, loss could be carried forward from year to year until completely absorbed but after the amendment, it could be carried forward only upto 8 years - loss incurred in asst. Yr. 1950-51 could not be set off against income of asst. year 1960-61 as, unless otherwise provided expressly or by necessary impl .....

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date. By following the decision of Hon ble Supreme Court in the case of Reliance Jute & Industries Ltd. it is held that the AO was justified in applying the amended provisions of section 73(4) of the Act and disallowing appellant s claim of carried forward of speculation loss of A.Y.2001-02 against the speculation 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 th .....

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erwise, in their ordinary meaning the phrases and sentences are to be construed according to the rules of grammar. It is well-settled that fiscal laws must be strictly construed, words must say what they mean, nothing should be presumed or implied. Primarily the language employed is the determining factor of the intention of the Legislature. The intention of the Legislature must be found in the words used by the Legislature itself It is a well-settled rule of construction that, in the first inst .....

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o periods prior to assessment year 2003-04 and set-off ( such loss is therefore governed by the provisions of section 74(1) as they stood prior to the amendment made by the Finance Act, 2002 with effect from April 1, 2003. The expression "arid so on" used in clause '(b) of section 74(1), existed prior to amendment with effect from April 1, 2003, is sufficient clarify that if the long-term capital loss cannot be wholly set off against long term capital gains of the immediately succe .....

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tal 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 shall be governed by the provisions of section 74(1) as they stood prior to amendment made with effect from April I, 2003. The words used in the amended provisions of section 74(1) clearly indicate this position .....

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