TaxTMI 
TaxTMI 
2012 (9) TMI 514
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.... On 4/9/2012 the appellant-assessee sought leave of this Court to amend the appeal by reformulating the questions of law. Leave to amend was granted. The reformulated questions of law read as under:- 1) Whether on the facts and in the circumstances of the case the Tribunal was right in law in not appreciating that all the conditions of Section 94(7) of the Act were not fulfilled in the facts of the present case and hence, the same could not be invoked to disallow the legitimate losses incurred? 2) Whether on the facts and in the circumstances of the case the Tribunal was right in law in not appreciating the true and correct interpretation of the term "securities" in the Act thereby not appreciating that the amendment to Section 94(7) ....
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....05-06. Consequently, a sum of Rs.64.13 lacs disallowed under Section 94(7) of the Act was added back to the appellant's income by order dated 30/11/2007 of the Assessing officer. 4) The Commissioner of Income Tax (Appeals) by an order dated 6/12/2009 dismissed the appellant's appeal holding that the amendment to Section 94(7)(b)(ii) of the Act was effective from 1/4/2005. Consequently, the amendment which was effective from 1/4/2005 would cover the period during which the appellant had suffered short term capital loss on the sale of the units. 5) On second appeal before the Tribunal the only contention raised by the appellant-assessee was that the provisions of Section 94(7) (b) (ii) which were amended by the Finance Act (No.2) of 200....
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....e specified undertaking or the specified company as referred to in the Explanation to clause (35) of section 10, for the purposes of entitlement of the holder of the units to receive income, or additional unit without any consideration, as the case may be;] (b) "securities" includes stocks and shares; (c) securities shall be deemed to be similar if they entitle their holders to the same rights against the same persons as to capital and interest and the same remedies for the enforcement of those rights, notwithstanding any difference in the total nominal amounts of the respective securities or in the form in which they are held or in the manner in which they can be transferred; (d) "unit" shall have the meaning assigned to it in cla....
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....7)(b)(i). This is so as the word securities has been defined in Section 94 as including, stock and shares. In further support of his submission he invited our attention to sub-clause(d) of the Explanation to Section 94 which defines units to mean the same as defined under clause (b) of the Explanation to Section 115AB, wherein unit has been defined to mean a unit of a mutual fund specified under Section 10(23D) of the Act or of the Unit Trust of India. In view of Explanation (c) to Section 10(123D) of the Act securities would have the meaning assigned to it under the Securities and Exchange Board of India Act, 1992 which in turn has the meaning assigned to it under the Securities Contracts (Regulation) Act, 1956. Under Section 2(h) of the S....
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....rged before any of the authorities under the Act including the Tribunal. The only submission made before the authorities was that the amendment to Section 94(7) (b)(ii) by Finance (No.2) Act 2004 will not have retrospective effect. Before us he has not canvassed the submissions made by the appellant before the authorities but has taken up a new point. This Court in the matter of CIT v. Tata Chemicals Ltd. reported in 256 ITR 395 has held that in an appeal under Section 260A only a question raised before the Tribunal can be canvassed before the Court. In this case as the question as formulated not having been raised before the Tribunal, no question of law arises for consideration of this Court. On this limited ground alone the appeal can be ....