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TMI Blog2014 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... rnover for the computation of deduction u/s.80HHC of the Act? B. Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by CIT(A) in directing to allow the claim of Long Term Capital Loss of Rs.44.01 lakhs made by the Assessing Officer on sale of units of Mutual Funds?" 2. In so far as Question [A] is concerned, it is an admitted position that the same is covered by the judgment of this Court dated 3.12.2013 in the case of Commissioner of Income-tax vs. Pogagen AMP Nagarsheth Powertronics Ltd. in Tax Appeal No.884 of 2006 In terms of the said judgment, question is answered against the Revenue. 3. Question [B] needs a brief reference. It arises in following background:- 3.1 The issue arose in Assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt-term losses. Applying section 94(7) in a case for the assessment year(s) falling after 1-4-2002, the loss to be ignored would be only to the extent of the dividend received and not the entire loss. In other words, losses over and above the amount of the dividend received would still be allowed from which it follows that the Parliament has not treated the dividend stripping transaction as sham or bogus. It has not treated the entire loss as fictitious or only a fiscal loss. After 1-4- 2002, losses over and above the dividend received will not be ignored under section 94(7). If the argument of the Department is to be accepted, it would mean that before 1-4-2002 the entire loss would be disallowed as not genuine but, after 1-4-2002, a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rhaps ignoring the fact that, the issue pertained to Assessment Year 2002-03, and therefore amendment under section 94 of the Act would apply, followed the decision in the case of this very assessee for the earlier years in which the Tribunal had followed the decision of Special Bench in the case of of Income Tax, Mumbai vs. Walfort Share & Stock Brokers (P.) Ltd (supra). 5. To our mind, therfore, the Tribunal committed an error in ignoring the fact that the decision in the case of the assessee for the earlier year was rendered in the background of unamended section 94. In the present case, amended section 94 and in particular sub-section(7) thereof had to be applied. While so doing, the ratio of the decision of Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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