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TMI Blog2015 (4) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... section 88E shall be allowable in, or after, the assessment year beginning on the 1st day of April, 2009 i.e. because a deduction which is contemplated by this provision has been now made admissible elsewhere. In these circumstances, the Appeal raises no substantial question of law. It is dismissed. More so when the Tribunal's order has been given effect to by the Assessing Officer. He has followed his view taken in the assessment year 2006-07, which is also following the Tribunal's order. - Decided against revenue. - Income Tax Appeal No. 250 of 2013 - - - Dated:- 9-1-2015 - S. C. Dharmadhikari And S. P. Deshmukh,JJ. For the Appellants : Mr A R Malhotra with Mr N A Kazi i/b Ms Padma Divakar For the Respondent : Mr San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal was that the rebate in respect of securities transaction tax and admissible under section 88E has not been granted in terms of the section and the entitlement of the Assessee thereunder. The Assessee's representative contended that the deduction under section 88E in accordance with the formula prescribed under sub-section (2) of section 88E does not rule out brought forward loss of ₹ 1,62,36,858/- from assessment year 2007-08. That is set off against the income from taxable securities of ₹ 4,95,93,132/- earned during the assessment year 2008-09. It was submitted that the taxable securities transactions, meaning thereby the tax on the securities transactions, which are taxable, will have to be computed on this entire f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of market segment/future and option segments is not there but there is net income after setting off of losses. He submits that the Tribunal's order contains something which is not subject matter of section 88E of the Income Tax Act, 1961. Consequently, the Appeal be admitted. 7. On the other hand, Mr. Shah appearing for the Respondent would submit that the language of section 88E is clear and unambiguous. It does not warrant any interpretation. Subsection (1) thereof states that where the total income of the Assessee in a previous years includes any income, chargeable under the head profit and gains of business or profession arising from taxable securities transactions, he shall be entitled to a deduction from the amount of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge rate was adopted before setting off business loss of earlier years. The assessing Officer held that the total income of the Assessee is ₹ 5,94,71,620/-, which includes ₹ 3,34,49,474/- (after setting of business loss of ₹ 1,62,36,858/- brought forward from the year 2007-08), which is chargeable under the head profits and gains of business or profession arising from taxable securities transactions. He therefore held that the Assessee is entitled to get rebate under section 88E on the income of ₹ 3,34,49,474/-, but not on ₹ 4,95,93,132. 9. To our mind, all that the Tribunal has done is to take into account the volume of the securities transactions and which were taxable. The total income of the Assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into in the course of his business during that previous year. The proviso contemplates that deduction can be allowed only if the Assessee furnishes, along with the return of income, evidence of payment of securities transaction tax in the prescribed form. There is no dispute before us that the Assessee has complied with the proviso and the second proviso as well, namely that the amount of deduction under this sub-section shall not exceed the amount of income tax on taxable securities transactions computed in the manner provided in sub-section (2). To our mind, the Tribunal committed no error when it corrected the computation or calculation of deduction. There was no warrant in the light of the clear language of this provision then to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) of section 88E. We do not think that there is any basis for the argument and in the given facts and circumstances that the average rate was applied on income before setting off business loss of earlier year. 10. In these circumstances and when the income from the securities transactions is taxable and offered to tax, the deduction insofar as that sum is concerned or quantum has been granted. We do not think that the Tribunal's order can be interfered with. The Tribunal's view is imminently possible in the backdrop of the facts and circumstances peculiar to the Assessee. In any event by sub-section (3) of section 88E it has been clarified that no deduction under section 88E shall be allowable in, or after, the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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