Holding

The loss from share trading, being a speculation loss, cannot be set off against futures and options profits, and the amendment to the Explanation to Section 73 is prospective, not retrospective.

Summary

Snowtex Investment Ltd., a non‑banking financial company, incurred a loss from share trading in AY 2008‑09 and sought to set off that loss against profits earned from futures and options trading. The assessing officer treated the share‑trading loss as a speculation loss and disallowed the set‑off, holding that futures and options profits were not speculative. The Commissioner of Income Tax upheld this view, and the ITAT allowed the set‑off, which was reversed by the Calcutta High Court, holding that futures and options profits were not speculative. Snowtex appealed, arguing that its principal business was granting loans and advances and that the amendment to the Explanation to Section 73 (effective 1 April 2015) should be applied retrospectively to AY 2008‑09. The Supreme Court examined the legislative history of Section 43(5) (amended by the Finance Act, 2005) and the Explanation to Section 73 (amended by the Finance (No. 2) Act, 2014) and held that the latter amendment was prospective, not retrospective, and that the loss from share trading could not be set off against futures and options profits. Consequently, the Court dismissed the appeal.

Issues considered

Whether a loss arising from share trading (treated as speculation) can be set off against profits from futures and options trading under Section 73 of the Income Tax Act.
Whether the amendment to the Explanation to Section 73, effective from 1 April 2015, is retrospective and thus applicable to AY 2008‑09.
Whether the principal business of the assessee was granting loans and advances, thereby exempting it from the deeming fiction of Section 73.

Legislation cited

Subjects

speculation lossset‑offfutures and optionsIncome Tax Actretrospective amendmentNBFCprincipal businessSection 43(5)Section 73

Judgment

[2019] 8 S.C.R. 687 687

SNOWTEX INVESTMENT LIMITED A
v.
PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-2,
KOLKATA
(Civil Appeal No. 4483 of 2019) B
APRIL 30, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Income Tax Act, 1961: ss.43(5)(d), 73 – Assessment year 2008- C
2009 – Assessee-NBFC having sole business of share trading –
Transacting in future and options – Whether the speculation loss is
capable of set off against the profits of trading in future and options
– Held: The loss which occurred to the assessee as a result of its
activity of trading in shares (a loss arising from the business of
D
speculation) is not capable of being set off against the profits which
it has earned against the business of futures and options since the
latter would not constitute profits and gains of a speculative business
– Finance Act, 2005.
Income Tax Act, 1961: s.73 – Amended provisions brought
on the statute book after the assessment year in question – Whether E
retrospective in nature – Held: The Parliament amended s.43(5)
with effect from 1 April 2006 in relation to the business of trading
in derivatives – However, in respect of trading in shares, Parliament
brought about a specific amendment in the Explanation to s.73 with
effect from 1 April 2015 – The latter amendment was intended to F
take effect from the date stipulated by Parliament – There is no
reason to hold that it was clarificatory or that the intent of Parliament
was to give it retrospective effect.
Dismissing the appeal, the Court
HELD : 1. The provisions of Section 43(5) were amended G
by the Finance Act, 2005. Prior to the amendment, Section 43(5)
defined a ‘speculative transaction’ to mean a transaction in which
a contract for the purchase or the sale of any commodity including
stocks and shares is settled otherwise than by the actual delivery
H
687
688 SUPREME COURT REPORTS [2019] 8 S.C.R.

A or transfer of the commodity or scrips. The impact of the
amendment by the Finance Act, 2005 was that an eligible
transaction on a recognised stock exchange in respect of trading
in derivatives was deemed not to be a speculative transaction.
With effect from 1 April 2006, trading in derivatives was by a
deeming fiction not regarded as a speculative transaction when
B
it was carried out on a recognized stock exchange. [Para 14]
[694-C-E]
2. Section 73 deals with losses from speculation business.
Under sub-Section (1) of Section 73, a loss computed in relation
to speculation business carried on by an assessee can only be
C set off against the profits and gains of another speculation
business. The Explanation to Section 73 contains a deeming fiction
where certain businesses shall, for the purposes of the section,
be deemed to be speculation businesses. The Explanation also
carves out an exception in respect of certain specified businesses
D which shall lie outside the fold of the deeming fiction. Prior to the
amendment of the Explanation by the Finance (No. 2) Act 2014
with effect from 1 April 2015, the business of trading in shares
carried on by a company was not excluded from its purview. While
on the one hand, Parliament amended Section 43(5) with effect
from 1 April 2006 as a result of which trading in derivatives on
E recognised stock exchanges fell outside the purview of the
business of speculation, a corresponding amendment to the
Explanation to Section 73 in respect of trading in shares was
brought in only with effect from 1 April 2015. In the instant case,
there is no dispute about the fact that the assessee was registered
F as an NBFC under the provisions of the Reserve Bank of India
Act, 1934. Section 73(1) does not define specifically, the
circumstances in which the principal business of a company would
be regarded as a business of the specified description. It is evident
that the assessee itself stated that share trading was its sole
business during the assessment year in question i.e. A.Y. 2008-
G 2009. The principal business of the assessee was not of granting
loans and advances during the assessment year. As a
consequence, the deeming fiction under Section 73 would be
attracted. Hence, the finding of the High Court, on the first aspect,
cannot be faulted. [Paras 16, 17, 20, 22] [695-E-F; 696-B-C, F ;
H 697-A, G]
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 689
INCOME TAX

3. The provisions of Section 43(5) were amended with effect A
from 1 April 2006. While amending the provisions of Section
43(5), the Parliament indeed was cognizant of the provisions which
were contained in Section 73(4). A memorandum contained in
the Finance Act, 2005 indicated that the provisions of Section
73(4) were proposed to be amended so as to reduce the period
B
of carry forward of speculation losses from eight assessment years
to four assessment years. Having introduced an amendment to
Section 73(4), the Parliament would have, if it intended to bring
about a parity with the provisions of Section 43(5) introduced a
specific amendment. Parliament, however, did not do so by the
Finance Act 2005. It was only with effect from 1 April 2015 that C
an amendment was brought about to exclude trading in shares
from the deeming provision contained in the Explanation to
Section 73. Parliament may have had reasons to allow the situation
to continue until the amendment was brought into force, including
its view in regard to the stability of the stock market. It would
D
be difficult to hold that the provisions which were contained in
the Finance Act (No. 2) 2014 insofar as they amended the
Explanation to Section 73 were clarificatory or that
notwithstanding the provision by which the amendment was
brought into force with effect from 1 April 2015, that it should be
given retrospective effect. [Paras 23, 24] [697-H; 698-A, C-G] E
Commissioner of Income Tax (Central)-I, New Delhi v.
Vatika Township Private Ltd. (2015) 1 SCC 1 : [2014]
12 SCR 1037 – followed.
Allied Motors (P) Ltd. v. Commissioner of Income Tax,
Delhi (1997) 3 SCC 472 : [1997] 2 SCR 780 ; F
Commissioner of Income Tax v. Alom Extrusions Ltd.
(2010) 1 SCC 489 : [2009] 15 SCR 1154 ; Vijay
Industries v. Commissioner of Income Tax (2019) 4 SCC
184 – relied on.
Commissioner of Income Tax v. Savi Commercial P. Ltd. G
(2015) 373 ITR 243 – referred to.

H
690 SUPREME COURT REPORTS [2019] 8 S.C.R.

A Case Law Reference
[1997] 2 SCR 780 relied on Para 9
[2009] 15 SCR 1154 relied on Para 9
[2014] 12 SCR 1037 followed Para 12
B (2019) 4 SCC 184 relied on Para 12
(2015) 373 ITR 243 referred to Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4483
of 2019.
C From the Judgment and Order dated 22.11.2016 of the High Court
at Calcutta in ITAT No. 199 of 2016.
R. V. Easwar, Sr. Adv., Naveen R. Nath, Ms. Lalit Mohini Bhat,
Rahul Jain, Ms. Rubal Bansal, Advs. for the Appellant.
Arijit Prasad, Sr. Adv., Ms. Rukhmini Bobde, Mrs. Anil Katiyar,
D Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y. CHANDRACHUD, J.
1. Leave granted.
E
2. This appeal arises from a judgment of a Division Bench of the
High Court of Calcutta dated 22 November 2016 in an appeal under
Section 260A of the Income Tax Act, 1961.
3. The appellant was registered as a non-banking financial company
F under the Reserve Bank of India Act, 1934. The appellant filed its return
of income on 27 September 2008. The return was processed under
Section 143(1) on 8 October 2009. On the case being selected for scrutiny,
a notice was issued under Section 143(2). By an order dated 14 December
2010 the assessing officer recorded that the principal business activity
of the assessee is trading in shares and securities. The loss from share
G trading was held to be a speculation loss. The assessing officer held that
in view of the provisions of Section 43(5)(d), activities pertaining to futures
and options could not be treated as speculative transactions.The loss
from speculation was held not to be capable of being set off against the
profits from business.
H
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 691
INCOME TAX [DR. DHANANJAYA Y. CHANDRACHUD, J.]

4. Against the order of the assessing officer for assessment year A
2008-2009, an appeal was filed before the CIT(A). The CIT(A) held
that the assessee derived income from trading in derivatives and share
business along with dividend and interest and was an NBFC. The CIT(A)
inter alia held that the provisions of Section 43(5) came into existence
with effect from 1 April 2006 and hence, transactions in futures and
B
options must be treated as business income as distinct from trading in
shares. Consequently, the CIT(A) rejected the contention of the assessee
that the assessing officer had erred in not allowing the speculation loss
to be set off against profits of trading in futures and options.
5. The Revenue appealed against the decision of the CIT(A).
The Income Tax Appellate Tribunal1 by its decision dated 6 November C
2015 held that the claim of the assessee for setting off the loss from
share trading should be allowed against the profits from transactions in
futures and options, since the character of the activities was similar.
The ITAT held that the assessee which was in the business of share
trading had treated the entire activity of the purchase and sale of shares D
which comprised both of delivery based and non-delivery based trading,
as one composite business.
6. The Revenue appealed before the High Court which by its
judgment dated 22 November 2016 accepted its submission. The High
Court held that the profits which had arisen from trading in futures and E
options were not profits from a speculative business. Hence the loss on
trading in shares could not be set off against the profits arising from the
business of futures and options.
7. The dispute in the present case pertains to assessment year
2008-2009. F
8. Mr. R.V. Easwar, learned senior counsel appearing on behalf
of the appellant has urged two submissions in order to assail the decision
of the High Court. First, it has been submitted that the Explanation to
Section 73 as it stood prior to its amendment with effect from 1 April
2015 by Finance (No. 2) Act, 2014 contemplated that where any part of G
the business of a company, other than a company, the principal
business of which is the granting of loans and advances, consists
in the purchase of shares of other companies, the company shall, for the
purposes of this section, be deemed to be carrying on a speculation
1
“ITAT” H
692 SUPREME COURT REPORTS [2019] 8 S.C.R.

A business. In other words, the explanation as it then stood clarified that
where the principal business of the company consists of the grant of
loans and advances, the deeming fiction provided in the explanation would
not be attracted. In the present case, it was urged that the principal
business of the assessee for AY 2008-2009 was of granting loans and
advances. This submission was sought to be buttressed on the basis of
B
the figures drawn from the balance sheet of the appellant as extracted
in the order of assessment. Those figures, it has been submitted, indicate
that for the financial year ending 31 March 2008, the following position
emerges:
(i) The total funds available – Rs 13.48 crores;
C
(ii) Funds deployed for loans and advances - Rs 11.32 crores
(iii) Percentage – 84%
(iv) Deployed for share business – Rs 1.28 crores

D (v) Percentage – 9.5%
(vi) Unsecured loans – Rs 5.92 crores
Consequently, the submission which has been urged under the
first head is that the assessee having deployed a substantial part of its
funds during the assessment year for loans and advances, the High Court
E erred in accepting the view of the assessing officer. It was urged that
the assessee has a certificate as an NBFC under the provisions of the
Reserve Bank of India Act 1934.
9. The second limb of the submissions, which is in the alternative,
is that the provisions of the Explanation to Section 73 were amended so
F as to bring trading in shares within its purview by Finance (No. 2) Act
2014. It was urged that this amendment should be construed to be
retrospective, though Parliament has brought it into force with effect
from 1 April 2015. In this regard, it was submitted that insofar as trading
in derivatives is concerned, the provisions of Section 43(5) were amended
by Finance Act, 2005 to provide that an eligible transaction in respect of
G trading in derivatives of securities carried out on a recognised stock
exchange shall not be deemed as a speculative transaction. It was urged
that there was a clear anomaly in the provisions of law. The anomaly, it
was submitted, consisted in the fact that delivery based trading in shares
was treated as a speculative business until the amendment to the
H Explanation to Section 73 was brought into force on 1 April 2015. On the
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 693
INCOME TAX [DR. DHANANJAYA Y. CHANDRACHUD, J.]

other hand, what was essentially speculative and non-delivery based, A
namely, trading in derivatives on recognised stock exchanges was
removed from the purview of the business of speculation with effect
from 2006-2007. Reliance has been placed on the Circular of the CBDT
dated 27 February 2006 explaining the provisions of the Finance Act,
2005 and on the Circular dated 21 January 2015 explaining the provisions
B
of Finance (No. 2) Act, 2015. Hence, it is urged that even though
Parliament brought into force the amendment to the Explanation to Section
73 with effect from 1 April 2015, this would not affect the judicial authority
of this Court to indicate that the amendment must, by its very nature, be
regarded as retrospective having regard to the intent and purpose of the
amendment. Reliance was placed on the decisions of this Court in Allied C
Motors (P) Ltd. v. Commissioner of Income Tax, Delhi2 and in
Commissioner of Income Tax v. Alom Extrusions Ltd.3.
10. On the other hand, it has been urged on behalf of the Revenue
by Mr Arijit Prasad that in evaluating what constitutes the principal
business of the assessee within the meaning of the Explanation to Section D
73, the High Court has relied on two significant circumstances. The
first circumstance is the admission of the assessee before the assessing
officer to the effect that share trading was the sole business of the
assessee during the assessment year in question. The second
circumstance is that while the assessee had received interest on loans
of Rs 2,21,917, it had paid out interest of Rs 62,84,111.60. The Revenue E
has urged that the figures from the balance sheet of the assessee would
indicate that while the assessee had borrowed unsecured loans to the
tune of Rs 5.92 crores and had given loans and advances of Rs 11.32
crores, this included interest free lending of Rs. 9.58 crores. In this
background, the High Court came to the conclusion that the principal F
business for the assessment year was not the granting of loans and
advances. This finding was supported on the above two grounds.
11. On the second issue of the claim of retrospectivity, it was
urged that though the Court has the power in an appropriate case, based
on the intent of the legislature to hold that an amendment is retrospective, G
the position in this case is quite distinct. In the present case, it was
submitted that when the provisions of Section 43(5) were amended with
effect from 2006 by the Finance Act 2005, the legislature took note of
2
(1997) 3 SCC 472
3
(2010) 1 SCC 489 H
694 SUPREME COURT REPORTS [2019] 8 S.C.R.

A the provisions of Section 73. Yet it did not consider it appropriate to
make a corresponding amendment in the Explanation to Section 73 and
it is only nine years thereafter that an amendment to the latter provision
was introduced. Hence, it was urged that the intent of the legislature
was not to make the amendment to the Explanation to Section 73
retrospective.
B
12. Reliance has been placed on the decisions of this Court in
Commissioner of Income Tax (Central)-I, New Delhi v. Vatika
Township Private Ltd.4 and on the judgment of a three judge Bench
of this Court in Vijay Industries v Commissioner of Income Tax5.
C 13. These submissions now fall for consideration.
14. The provisions of Section 43(5) were amended by the Finance
Act, 2005. Prior to the amendment, Section 43(5) defined a ‘speculative
transaction’ to mean a transaction in which a contract for the purchase
or the sale of any commodity including stocks and shares is settled
D otherwise than by the actual delivery or transfer of the commodity or
scrips. The impact of the amendment by the Finance Act, 2005 was
that an eligible transaction on a recognised stock exchange in respect of
trading in derivatives was deemed not to be a speculative transaction.
With effect from 1 April 2006, trading in derivatives was by a deeming
fiction not regarded as a speculative transaction when it was carried out
E on a recognized stock exchange.
15. The circular of the CBDT dated 27 February 2006 indicated
that this amendment was occasioned by the changes which were
introduced by SEBI both at the legal and technological level for bringing
in greater transparency in the market for derivatives. Explaining the
F reason for the amendment, the Circular states:
“3.10 Excluding ‘trading in derivatives’ on recognised stock
exchanges from the ambit of ‘speculative transactions’
Existing provisions of clause (5) of section 43 define ‘speculative
transaction’ to mean a transaction in which a contract for the
G
purchase or sale of any commodity including stocks and shares is
settled otherwise than by the actual delivery or transfer of the
commodity or scrips. The proviso to section 43(5) lists out certain
transactions which are not deemed to be speculative transactions.
4
(2015) 1 SCC 1
5
H (2019) 4 SCC 184
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 695
INCOME TAX [DR. DHANANJAYA Y. CHANDRACHUD, J.]

Systemic and technological changes introduced by SEBI have A
resulted in sufficient transparency in the stock markets and have
to a large extent curbed the scope for generating fictitious losses
through artificial transactions or shifting of incidence of loss from
one person to another. The screen based computerized trading
provides for audit trail. In the wake of these developments, the
B
present distinction between speculative and non-speculative
transactions, in respect of trading in derivatives of securities is
losing relevance.
The Finance Act, 2005 has, accordingly, amended section 43(5)
to provide that an eligible transaction in respect of trading in
derivatives of securities carried out on a recognised stock exchange C
shall not be deemed as speculative transaction. The notification
prescribing the rules and the conditions to be fulfilled by a stock
exchange to be recognized by the Central Government for the
purposes of section 43(5) [i.e., Rules 6DDA and 6DDB of the
Income-tax Rules, 1962] has been published in the Official Gazette D
on 1st July, 2005 vide S. O. No. 932(E).
Applicability: From A.Y. 2006-07 onwards.”
16. Section 73 deals with losses from speculation business. Under
sub-Section (1) of Section 73, a loss computed in relation to speculation
business carried on by an assessee can only be set off against the profits E
and gains of another speculation business. The Explanation to Section
73 contains a deeming fiction where certain businesses shall, for the
purposes of the section, be deemed to be speculation businesses. The
Explanation also carves out an exception in respect of certain specified
businesses which shall lie outside the fold of the deeming fiction. Prior F
to the amendment of the Explanation by the Finance (No. 2) Act 2014
with effect from 1 April 2015, the business of trading in shares carried
on by a company was not excluded from its purview. However, by the
amendment which was brought into force from 1 April 2015, the
explanation to Section 73 reads as follows:
G
“Explanation - Where any part of the business of a company (other
than a company whose gross total income consists mainly of
income which is chargeable under the heads “Interest on
securities”, “Income from house property”, “Capital gains” and
“Income from other sources”, or a company the principal business
H
696 SUPREME COURT REPORTS [2019] 8 S.C.R.

A of which is the business of trading in shares or banking or the
granting of loans and advances) consists in the purchase and sale
of shares of other companies, such company shall, for the purposes
of this section, be deemed to be carrying on a speculation business
to the extent to which the business consists of the purchase and
sale of such shares.”
B
17. While on the one hand, Parliament amended Section 43(5)
with effect from 1 April 2006 as a result of which trading in derivatives
on recognised stock exchanges fell outside the purview of the business
of speculation, a corresponding amendment to the Explanation to Section
73 in respect of trading in shares was brought in only with effect from 1
C April 2015.
18. The submission which has been urged on behalf of the appellant
is that there was no logical reason to exclude from the purview of
speculation business, trading in shares, whereas trading in derivatives
was excluded, as we have seen, from the ambit of Section 43(5) after 1
D April 2006. We will consider this aspect of the alternative submission
subsequently.
19. At this stage, we will deal with the first submission which is
that the Explanation to Section 73, as it stood prior to the amendment,
excluded from the deeming definition of a speculation business, a situation
E where the principal business of a company was granting of loans and
advances.
20. In the present case, there is no dispute about the fact that the
assessee was registered as an NBFC under the provisions of the Reserve
Bank of India Act, 1934. Section 73(1) does not define specifically, the
F circumstances in which the principal business of a company would be
regarded as a business of the specified description. In the present case,
the principal business was urged to be the granting of loans and advances.
We cannot accept this submission and are of the view that the High
Court was justified in rejecting it. The circumstance, which in our view
G is of crucial significance, is how the assessee construed its own line of
business. The High Court has extracted what the assessee stated before
the assessing officer namely:
“………… in our case the share trading is our sole business during
the assessment year under concern”.
H
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 697
INCOME TAX [DR. DHANANJAYA Y. CHANDRACHUD, J.]

From the above statement of the assessee, it is evident that the A
assessee itself stated that share trading was its sole business during the
assessment year in question i.e. A.Y. 2008-2009.
21. Mr. R.V. Easwar, learned senior counsel submits that while
the assessee did make this statement before the assessing officer, it
should not be regarded as conclusive. It was urged that the submission B
of the assessee was also rejected on the basis that while it had received
interest on loans of Rs 2.21 lakhs, it had paid out interest of Rs 62.84
lakhs. The submission is that, it is not merely the receipt of interest on
loans and advances, but the deployment of funds which should have a
bearing in determining the principal nature of the business. In this context,
reliance was placed on the view taken by a Division Bench of the C
Calcutta High Court in Commissioner of Income Tax v. Savi
Commercial P. Ltd.6. The High Court, while dealing with the provisions
of the Explanation to Section 73, observed that income alone cannot be
taken into account and where the activity of granting loans and advances
“is on a larger scale than the business of buying and selling shares” that D
would be an important indicator. In other words, it was held that profit
alone cannot be made a distinctive factor.
22. The correctness of this aspect of the submission which has
been urged by learned senior counsel need not be determined in the
facts of the present aspect, since we are of the view that the High Court E
was justified in relying upon the specific admission of the assessee that
during the assessment year in question, its sole business was of dealing
in shares. We must also advert to the circumstance that while the assessee
had furnished loans and advances of Rs 11.32 crores during the
assessment year, this included interest free lending to the extent of Rs
9.58 crores. Having regard to these facts and circumstances, the specific F
admission of the assessee before the assessing officer assumes
significance. The assessee made an admission on a statement of fact
which in our view, must bind it. In this view of the matter, the principal
business of the assessee was not of granting loans and advances during
the assessment year. As a consequence, the deeming fiction under Section G
73 would be attracted. Hence, the finding of the High Court, on the first
aspect, cannot be faulted.
23. That leads the Court to the second submission which has been
canvassed in the course of the hearing of the appeal. The provisions of
6
(2015) 373 ITR 243 H
698 SUPREME COURT REPORTS [2019] 8 S.C.R.

A Section 43(5) were amended with effect from 1 April 2006. The Finance
Act, 2005 contained the following memorandum explaining the
amendment:
“The proposed amendment, therefore, seeks to provide that an
eligible transaction carried out in respect of trading in derivatives
B in a recognised stock exchange shall not be deemed to be a
speculative transaction. The proposed amendment also seeks to
notify relevant rules etc. regarding conditions to be fulfilled by
recognised exchanges in this regard. Further it is also proposed
to amend sub-section (4) of section 73 so as to reduce the period
of carry forward of speculation losses from eight assessment years
C to four assessment years.”
24. While amending the provisions of Section 43(5), the Parliament
indeed was cognizant of the provisions which were contained in Section
73(4). The above memorandum indicates that the provisions of Section
73(4) were proposed to be amended so as to reduce the period of carry
D forward of speculation losses from eight assessment years to four
assessment years. Having introduced an amendment to Section 73(4),
the Parliament would have, if it intended to bring about a parity with the
provisions of Section 43(5) introduced a specific amendment. Parliament,
however, did not do so by the Finance Act 2005. It was only with effect
E from 1 April 2015 that an amendment was brought about to exclude
trading in shares from the deeming provision contained in the Explanation
to Section 73. Parliament may have had reasons to allow the situation
to continue until the amendment was brought into force, including its
view in regard to the stability of the stock market. Insofar as this Court
is concerned, It would be difficult to hold that the provisions which were
F contained in the Finance Act (No. 2) 2014 insofar as they amended the
Explanation to Section 73 were clarificatory or that notwithstanding the
provision by which the amendment was brought into force with effect
from 1 April 2015, that it should be given retrospective effect. We reject
the second submission.
G 25. Even though an amendment, including one in the context of
the Finance Act is brought into force with effect from a stipulated date,
the Court may as an exercise of statutory interpretation, determine
whether the amendment is clarificatory or was intended to operate with
retrospective effect. Such an exercise was carried out by this Court in
H
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 699
INCOME TAX [DR. DHANANJAYA Y. CHANDRACHUD, J.]

its decision in Allied Motors (supra). Interpreting the provisions of A
Section 43B, this Court held thus:
“10…While interpreting Section 43-B without the first proviso
some of the High Courts, in order to prevent undue hardship to
the assessee, had taken the view that Section 43-B would not be
attracted unless the sum payable by the assesee by way of tax, B
duty, cess or fee was payable in the same accounting year. If the
tax was payable in the next accounting year, Section 43-B would
not be attracted. This was done in order to prevent any undue
hardship to assessees such as the ones before us. The
Memorandum of Reasons takes note of the combined effect of
Section 43-B and the first proviso inserted by the Finance Act, C
1987. After referring to the fact that the first proviso now removes
the hardship caused to such taxpayers it explains the insertion of
Explanation 2 as being for the purpose of removing any ambiguity
about the term “any sum payable” under clause (a) of Section 43-
B. This Explanation is made retrospective. The Memorandum D
seems to proceed on the basis that Section 43-B read with the
proviso takes care of the hardship situation and hence Explanation
2 can be inserted with retrospective effect to make clear the ambit
of Section 43-B(a). Therefore, Section 43-B(a), the first proviso
to Section 43-B and Explanation 2 have to be read together as
giving effect to the true intention of Section 43-B. If Explanation E
2 is retrospective, the first proviso will have to be so construed.
Read in this light also, the proviso has to be read into Section 43-
B from its inception along with Explanation 2.”
26. The decision of the Court was intrinsically based on a holistic
reading of the provisions of Section 43-B. The memorandum proceeded F
on the basis that Section 43-B read with the proviso was intended to
alleviate a situation of hardship. Hence, Explanation 2 was enacted
with retrospective effect to clarify the ambit of Section 43-B(a). This
Court held that if Explanation 2 is retrospective, the first proviso would
be similarly so construed. This position was re-enforced by a G
departmental circular. The Court, in other words, interpreted the intent
of Parliament.
27. A similar line of enquiry has been adopted in the subsequent
decision of this Court in Alom Extrusions (supra). In that case, while
construing the provisions of Section 43-B, this Court held: H
700 SUPREME COURT REPORTS [2019] 8 S.C.R.

A “25. Before concluding, we extract hereinbelow the relevant
observations of this Court in CIT v. J.H. Gotla (1985)7 which
reads as under: (SCC p. 360, para 47)
“47. … we should find out the intention from the language used
by the legislature and if strict literal construction leads to an absurd
B result i.e. result not intended to be subserved by the object of the
legislation found in the manner indicated before, and if another
construction is possible apart from strict literal construction then
that construction should be preferred to the strict literal
construction. Though equity and taxation are often strangers,
attempts should be made that these do not remain always so and
C if a construction results in equity rather than in injustice, then such
construction should be preferred to the literal construction.
The test to be applied is essentially one of the intent of the
legislature.
D 28. In a more recent decision in Commissioner of Income Tax
v. Vatika Township Pvt. Ltd.8, a Constitution Bench of this Court
held thus:
“42.1. “Notes on Clauses” appended to the Finance Bill, 2002
while proposing insertion of proviso categorically states that “this
E amendment will take effect from 1.6.2002”. These become
epigraphic9 words, when seen in contradistinction to other
amendments specifically stating those to be clarificatory or
retrospectively depicting clear intention of the legislature. It can
be seen from the same notes that a few other amendments in the
Income Tax Act made by the same Finance Act specifically
F making those amendments retrospective. For example, clause 40
seeks to amend S.92-F. Clause (iii-a) of S.92-F is amended “so as
to clarify that the activities mentioned in the said clause include
the carrying out of any work in pursuance of a contract.” (emphasis
supplied). This amendment takes effect retrospectively from 1-
G 4-2002. Various other amendments also take place retrospectively.
The Notes on Clauses show that the legislature is fully aware of
three concepts:
7
(1985) 4 SCC 343
8
(2015) 1 SCC 1
9
Ed.: As per the Oxford Dictionary, “epigraphic” here means : intending to suggest the
H theme or purpose of the amendment
SNOWTEX INVESTMENT LTD. v. PRINCIPAL COMMISSIONER OF 701
INCOME TAX [DR. DHANANJAYA Y. CHANDRACHUD, J.]

(i) prospective amendment with effect from a fixed date; A
(ii) retrospective amendment with effect from a fixed anterior
date; and
(iii) clarificatory amendments which are retrospective in
nature.”
B
29. In M/s. Vijay Industries (supra), decided on 1 March 2019,
a three judge Bench of this Court held that the provisions of Section
80AB which were introduced by the Finance (No. 2) Act, 1980 with
effect from 1 April 1981 could not be regarded as clarificatory in nature.
The Court held that the provision was made with prospective effect and
the amendment would not apply to assessment years 1979-1980 and C
1980-1981 because the amended provision was brought on the statute
book after the assessment years in question.
30. In conclusion, we therefore, hold that the amendment which
was brought by Parliament to the Explanation to Section 73 by the Finance
(No 2) Act 2014 was with effect from 1 April 2015. In its legislative D
wisdom, the Parliament amended Section 43(5) with effect from 1 April
2006 in relation to the business of trading in derivatives, Parliament brought
about a specific amendment in the Explanation to Section 73, insofar as
trading in shares is concerned, with effect from 1 April 2015. The latter
amendment was intended to take effect from the date stipulated by E
Parliament and we see no reason to hold either that it was clarificatory
or that the intent of Parliament was to give it retrospective effect.
31. The consequence is that in A.Y. 2008-2009, the loss which
occurred to the assessee as a result of its activity of trading in shares (a
loss arising from the business of speculation) was not capable of being F
set off against the profits which it had earned against the business of
futures and options since the latter did not constitute profits and gains of
a speculative business.
32. For the reasons we have indicated, we find no error in the
decision of the High Court. The appeal is, accordingly, dismissed. There
G
shall be no order as to costs.
33. Pending application(s), if any, shall stand disposed of.

Devika Gujral Appeal dismissed.
H