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TMI Blog2012 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of assessee - ITA No.5055/Mum/2010 - - - Dated:- 11-4-2012 - B R Mittal, Rajendra Singh, JJ. For Appellant: Ms Rupinder Brar For Respondent: Shri M P Lohia ORDER Per: Rajendra Singh, AM: This appeal by the revenue is directed against the order dated 5.3.2010 of assessment year 2007-08. The only dispute raised in this appeal is regarding set off of short term capital loss from transaction on which Security Transaction Tax (STT) had been paid against short term capital gain arising from non STT transactions. 2. The AO noted that the assessee who is a Foreign Institutional Investor (FII) had declared short term capital gain of Rs.40,25,93,717/- from off market transactions in shares on which no Securities Transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that the Special Bench of the Tribunal in the case JCIT vs. Montgomery Emerging Market Funds (100 ITD 217) has held that every transaction relating to sale of asset under the head capital gain has to be treated as separate source of income and assessee can set off loss from one source from income against income from other source in the manner in which it is beneficial to it. The assessee also referred to the decision of Mumbai Bench of the Tribunal in the case of First State Investments (Hong Kong) Ltd. vs. ADIT (33 SOT 26) in which it was held that if higher benefit resulted from the exercise of the above option in a particular way vis a vis lower benefit resulting in other way then higher benefit available as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The dispute is regarding set off of short term capital loss arising from STT paid share transactions against short term capital gain arising from non STT transactions. The assessee had earned short term capital gain of Rs.40,25,93,717/- from non STT transactions and it had incurred short term capital loss of Rs.1,26,45,10,006/- from STT paid transactions. The issue is whether short term capital loss can be set off against short term capital gain mentioned above. Under the provisions of section 70(2), short term capital loss arising from any asset can be set off against short term capital gain arising from any other asset under a similar computation made. The AO held that since gain was from shares on which no STT was paid and loss from S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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