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TMI Blog2016 (4) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations of the Ld. CIT(A) that no reasons have been given by the Assessing Officer for taxing the said STCG’ @ 30%, whereas the assessee has shown the same as STT paid and therefore liable to tax @10% in the return of income. Evidence to this effect has also been placed before us at pgs 41 and 60 of the assessee’s paper book which indicate that the assessee has in fact paid STT in respect of this transaction. Before us, Revenue has failed to controvert both the evidence placed before us and the finding of the Ld.CIT(A) in this regard. In this factual matrix of the case, we uphold the order of the Ld. CIT(A) on this issue in directing the Assessing Officer to tax this amount of ₹ 7,04,43,724/- @ 10%.- Decided against revenue - ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term capital loss ( STCL ). 2.2. Aggrieved by the order if assessment dt. 02/02/2011 for Asst. year 2008- 09, the assessee preferred an appeal before the CIT(Appeals)-10, Mumbai. The Ld. CIT(A) allowed the assessee s appeal vide the impugned order dt. 28/03/2013. 3. Aggrieved by the order of the CIT(Appeals)-10, Mumbai dt. 28/03/2013 for Asst. year 2008-09, the revenue has preferred this appeal before the Tribunal raising the following grounds:- 1) On the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) erred in allowing STCL (on STT paid transactions) to be set-off against the STCG. (on non- STT paid transactions), when the STCG eligible for special discounted rate under section 111A does not cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) on this issue. It is submitted by the Ld.AR that the assessee has an option to set off its STT paid loss against non-STT paid income even though it has STT paid income available for set off. It was contended that the Ld. CIT(A) in allowing the assessee appeal on this issue correctly followed the decision of the co-ordinate bench of this Tribunal in the case of First State Investments (Hong Kong) vs. ADIT [(2010) 132 TTJ (Mum) 218] wherein on an identical issue, the co-ordinate bench held that the assessee had the choice to set-off STT paid losses first against non-STT paid profits and thereafter the remaining loss, if any, against STT paid profits. 5.3.1 We have heard the rival contentions and perused and carefully considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore and after the cut-off date. Effectively the question is about the setting off of short-term capital loss and such set off is governed by subsection (2) of section 70, which has been reproduced above. Primarily the use of word any to represent the transaction which resulted in the short-term capital loss is indicator of the initial determination of short-term capital loss or short-term capital gain, as the case may be, from each transaction distinctly. Suppose the assessee entered into one transaction of purchase and sale of the shares of company A , which resulted into short-term capital loss and there are other 9 transactions of purchase and sale of shares which resulted into short-term capital loss or short-term capital gain as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which specifically prohibits the setting off of long term capital loss against short-term capital gain. it has been provided in unambiguous words in sub-section (3) that the long-term capital loss can be set off only against longterm capital gain and not against the short-term capital gain, if the intention of the Legislature had been not to confer the choice on the assessee in the matter of setting off of the short-term capital loss suffered in the post cut-off date against the short-term capital gain of the pre-cut-off date, it would have clearly set out such intention in the language of sub-section (2) itself, as has been done in sub-section(3.) In the absence of an stipulation in this regard in stub-section (2), we are satisfied that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that STCG amounting to ₹ 7,04,43,724/- is to be taxed @ 30%. The Ld. DR for revenue was heard in support of the grounds raised and he placed reliance on the findings in the order of the Assessing Officer. 6.2 Per contra, the Ld. AR for the assessee submitted that there was no error in the impugned order of the Ld. CIT(A) on this issue in directing the Assessing Officer to levy tax@ 10% on the STCG amounting to ₹ 7,04,43,724/- earned on sale of equity shares and relying GDR s as claimed by the assessee. The Ld. DR contends that this grounds raised by revenue is factually erroneous as there is no discussion by the Assessing Officer as to why he applied the tax @ 30% on STCG amounting to ₹ 7,04,43,724/- as against tax @ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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