2008 (8) TMI 405 - AT - Income Tax

Summary

Issues Involved:
1. Allowance of short-term capital loss.
2. Applicability of provisions of s. 94(7) IT Act.
3. Interpretation of transactions involving bonus units and their tax implications.
4. Retrospective application of s. 94(8) IT Act.

Summary:

1. Allowance of Short-Term Capital Loss:
The Revenue challenged the CIT(A)'s decision to allow a short-term capital loss of Rs. 8,27,625. The CIT(A) directed the AO to allow this loss, which was incurred from the sale of mutual fund units.

2. Applicability of Provisions of s. 94(7) IT Act:
The AO disallowed the loss, arguing it fell under s. 94(7) IT Act, which disallows losses if units are bought within three months before the record date and sold within three months after, and the dividend is exempt. The CIT(A) found that the assessee did not receive any dividend or income on these units, thus s. 94(7) was not applicable.

3. Interpretation of Transactions Involving Bonus Units:
The AO treated the bonus units received as equivalent to dividends, applying s. 94(7). However, the CIT(A) and ITAT found that the transaction fell under s. 94(8), which specifically deals with bonus units and was introduced to curb tax avoidance via bonus stripping. The ITAT noted that s. 94(8) applies to transactions involving the receipt of additional units without payment and subsequent sale of the original units.

4. Retrospective Application of s. 94(8) IT Act:
The ITAT emphasized that s. 94(8) was effective from 1st April 2005 and applicable from the assessment year 2005-06 onwards. Since the assessment year in question was 2003-04, s. 94(8) could not be applied retrospectively. The ITAT upheld the CIT(A)'s decision, confirming that the AO incorrectly applied s. 94(7) and that the loss should be allowed.

Conclusion:
The ITAT dismissed the Revenue's appeal, affirming that the provisions of s. 94(7) were not applicable, and the loss claimed by the assessee was valid under the circumstances of the assessment year 2003-04.