TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 1539
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....e business as well as residential premises of the Apollo Group of Indore including the assessee. During the course of assessment proceedings the assessee had offered an additional income of Rs. 1,80,00,000/- but also claimed set off of business loss against this income. The Assessing Officer did not allow set off of loss by relying provisions of section 115BBE of the Act. 3. Aggrieved by this the assessee preferred an appeal before the Ld. CIT(A) who after considering the submissions affirm the view of the AO. Now the assessee is in further appeal. 4. The only effective ground in this appeal is declining the claim of set off against the additional income offered by the assessee. The Ld. counsel for the assessee submitted that the authorities below wrongly construed the provisions of law. He submitted that the provisions so applied were not in existence. He further submitted that the amendment in section 115BBE of the Act would be applicable from A.Y. 2017-18. The Ld. counsel submitted that the income offered cannot be termed as income covered u/s 68, 69, 69A, 69B & 69C of the Act. He further placed reliance on the decision of the Hon'ble Supreme Court rendered in the case o....
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....pens is that the substantive provision, as originally enacted or later amended, fails to clarify the intention of the legislature. In such a situation if subsequently some amendment is carried out to clarify the real intent, such amendment has to be considered as retrospective from the date when the earlier provisions was made effective. Such clarificatory or explanatory amendment is declaratory. As the later amendment clarifies the real intent and declares the position as was originally intended, it takes retroactive effect from the date when the original provision was made effective. Normally such clarificatory amendment is made retrospectively effective from the earlier date. It may also happen that the clarificatory or explanatory provision introduced later to depict the real intention of the legislature is not specifically made retrospective by the statute. Notwithstanding the fact that such amendment to the substantive provision has been given prospective effect, the judicial or quasi-judicial authorities, on a challenged made to it, can justifiably hold such amendment to be retrospective. The justification behind giving retrospective effect to such amendment is to apply the ....
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....on 68 or section 69A or section 69B or section 69C or section 69D. The appellant has submitted that since the insertion of words in section 115BBE(2) 'set off of any loss' is not retrospective in nature and will be applicable w.e.f. 01.04.2017 and the appellant's matter pertains to A.Y. 2013-14, the appellant is squarely out of the purview of section 115BBE(2). 3.5 The reason for introducing section 115BBE is explained in the Explanatory Memorandum of the Act which runs as under with the caption Measures to prevent generation and circulation of unaccounted money: "Under the existing provision of the Income-tax Act, certain unexplained amounts are deemed as income under section 68, section 69, section 69A, section 69B, section 69C and section 69D of the Act and are subject to tax as per the tax rate applicable to the assessee. In case of individuals, HUF, etc. no tax is levied up to the basis exemption limit. Therefore, in these cases, no tax can be levied on these deemed incomes if the amount of such deemed income is less than the amount of basic exemption limit and even if it is higher, it is levied at the lower slab rate. In order to curb the practice of laundering of un....
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....ll in the NAV after the record date and the payment of tax-free dividend and, therefore, loss on sale was not genuine. We find no merit in the above argument of the Department. At the outset, we may state that we have two sets of cases before us. The lead matter covers assessment years before insertion of Section 94(7) vide Finance Act, 2001 w.e.f. 1.4.2002. With regard to such cases we may state that on facts it is established that there was a "sale".The sale-price was received by the assessee. That, theassessee did receive dividend. The fact that the dividend received was tax-free is the position recognized under Section 10(33) of the Act. The assessee had made use of the said provision of the Act. That such use cannot be called "abuse of law". Even assuming that the transaction was pre-planned there is nothing to impeach the genuineness of the transaction. With regard to the ruling in McDowell & Co. Ltd. v. Commercial Tax Officer [154 ITR 148(SC)], it may be stated that in the later decision of this Court in Union of India v. Azadi Bachao Andolan [263 ITR 706(SC)] it has been held that a citizen is free to carry on its business within the four corners of the law. That, mere tax ....