TMI Blog2014 (12) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... made by virtue of the earlier provision, the assessee would not denied the benefit of deduction. When the assessee was enjoying the benefit till the date of amendment, by this amendment tax cannot be levied retrospectively, it would cause great hardship. Therefore, the authority were not justified in holding that the said provision is restrospective and levying taxes on the basis of the said amended provision. In that view, certainly it was not clarificatory in nature. Therefore, the first substantial question of law is answered in favour of the assessee Income from sale of shares - busniss income or short term capital gain - correct head of income - HELD THAT:- The assessee is an ayurvedic Doctor and he is in the business of purchase an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11,27,447/-. The assessing authority disallowed a sum of ₹ 3,08,296/- as contravening Section 40A(3) of the Income Tax Act, 1961 (for short hereinafter referred to as 'the Act'). Further, he held the Income derived by sale of shares as income from business. Aggrieved by the said order, the assessee preferred an appeal before the Commissioner of Income Tax Appeal who gave a partial relief under Section 40A(3) by reducing a sum of ₹ 52,430/-. Aggrieved by the said order, the assessee preferred an appeal before the Tribunal. The Tribunal gave partial relief in respect of share transaction in as much as treating only a sum of ₹ 1,10,902/-. Being the income from business or profession and granted a relief of ₹ 16, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have caused undue hardship and for that reason Parliament normally make this amended provision effective from the particular date. Where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. Where a law is enacted for the benefit of community as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment is not paid from the borrowed capital. When the Tribunal holds a sum of ₹ 16,665/- is to be treated as LTCG and do not fall under the heading of Income from business or profession, we do not find any justification to bring the remaining income under the said head. We do not see any logic or reason for making the distinction. In the facts of this case, we are satisfied that the Income derived by the assessee from sale of shares would not fall within the head of Income from business or profession and therefore, the impugned order passed by the Tribunal is hereby set aside. The second substantial question of law is answered in favour of the assessee and against the Revenue Hence, we pass the following: - ORDER Appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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