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TMI Blog2018 (12) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) has followed his orders passed for the earlier assessment years. Moreover, as could be seen from the facts on record, the assessee had incurred huge loss in assessment year 2009–10 as well as in the impugned assessment year. Admittedly, if the capital gain is held to be taxable in India, then the loss suffered by the assessee and carry forward of such loss is allowable to the assessee. However, no such benefit has been given to the assessee by the AO on the reasoning that assessee has not claimed it in the return of income. Thus, the assessee has been put to double jeopardy which, in our view, is unjust and improper. No reason to interfere with the decision of the learned Commissioner (Appeals) on the issue. - decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verifying the information furnished by the assessee, the Assessing Officer noticed that loss of ₹ 7,05,150 on account of foreign exchange transaction was treated as short term capital loss by the assessee and claimed to be exempt under Article 14(6) of the tax treaty. In response to the query raised by the Assessing Officer as to why the income / loss derived from sell of shares of companies dealing in real estate in India should not be held to be governed under Article 14(4) and brought to tax in India, it was submitted by the assessee that as per Article 14 of the India Spain tax treaty r/w Article 13 of U.N. Model, capital gain can be brought to tax in respect of sale of shares of a company if such company was incorporated to hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee preferred appeal before the first appellate authority. 4. The learned Commissioner (Appeals) taking note of the fact that identical issue arising in assessee s own case in assessment year 2009 10 and 2011 12, was decided in favour of the assessee by the learned Commissioner (Appeals) followed the same and decided the issue in favour of the assessee in the impugned assessment year as well. In effect, the learned Commissioner (Appeals) allowed assessee s claim of exemption under Article 14(6) of India Spain DTAA. 5. We have considered rival submissions and perused materials on record. At the outset, learned Authorised Representative submitted, the issue in dispute is now covered by the decision of the Tribunal in assessee s own c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in dispute between the parties is with regard to applicability of Article 14(4) of India Spain tax treaty. The learned Commissioner (Appeals) while deciding the issue in preceding assessment years referring to Article 14(4) of India Spain tax treaty qua Article 13(4) of U.N. Model Convention has held that capital gain arising out sale of shares is not taxable in India. The aforesaid decision of the learned Commissioner (Appeals) in assessment year 2007 08 to 2009 10 has been upheld by the Tribunal in the decision referred to above. No doubt, in the impugned assessment year, the learned Commissioner (Appeals) has followed his orders passed for the earlier assessment years. Moreover, as could be seen from the facts on record, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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