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TMI Blog2014 (8) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... turb the findings of the CIT(A) on the impugned issue. See FIRST STATE INVESTMENTS (HONGKONG) LTD. VERSUS ASSISTANT DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION), MUMBAI [ 2009 (7) TMI 908 - ITAT MUMBAI] - Decided in favour of assessee. - ITA No. 3278/Mum/2013 - - - Dated:- 8-8-2014 - Shri B.R. Baskaran, Accountant Member And Shri Vivek Varma, Judicial Member For the Appellant : Shri Manvendra Goyal. For the Respondent : Shri Anuj Kisnadwala. ORDER PER VIVEK VARMA, J.M.: Instant appeal is filed by the department against the order of CIT(A) 30, Mumbai, dated 01.02.2013, wherein, the solitary ground, being agitated is: (1) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- which assessee has adjusted against STCG on off market transaction, the assessee has not given any basis as to why only this amount is adjusted and what is the basis of arriving this value of loss; not more and not less. From the details filed during the course of assessment proceedings, it is seen that the assessee has STCG taxable @30% from the following scrip (Buy back share) i.e. off market transactions: Sr. No. Name of scrip Gain/Loss 1 Alfa Lavel 24,65,454 2 Punjab Tractors 2,03,221 3 Deccan Aviation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (28,14,111) Total (3936,840) 5.8 From the above working, it is seen that the assessee has adjusted only that part of the losses which pertains to shares sold through off market transaction as well as part of each which has been sold through recognized stock exchange. Balance loss has been adjusted against STCG taxable @ 10%. Scripwise calculation of short term capital gains/loss is not mandated by the provisions of the Act for adjusting losses. Net Short Term Capital Gain should be worked separately for each category of capital gains. Hence, the assessee s treatment is devoid any merits and hence rejected. STCG arising out of off m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise, under the STCG and find the net capital gain chargeable to tax. It goes without saying, in the absence of any exclusive provision of which loss has to be set off against which income, the method beneficial to the appellant will have to be followed. Therefore, in the facts of the appellant s case, the STCL arising from STT transactions at ₹ 63,88,271/- should be first set off against STCG on off market transactions at ₹ 66,33,390/- being sum of STCG in share transactions and in sale of units. This results into the following position: STCG (on non STT transactions) STCG on sale of shares 64,53,184 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Against this order of the CIT(A), the department is in appeal before the ITAT. 6. Before us, the DR relied on the order of the AO, whereas, the AR relied on the order of the CIT(A) and submitted that the language of section 70(2) says similar computation made . The AR also placed reliance on the decision of First State Investment (Hongkong) Ltd. vs Asst. DIT, reported in 33 SOT 26 (Mum), wherein it was held, In the instant case, the dispute was only about the choice of setting off of short-term capital loss suffered after the cut-off date against the short-term capital gain earned prior to the cutoff date. This position had arisen due to the introduction of section 111A for the first time from 1-4-2005 only, provides which for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct . it was decided, 1. 2. 3. At the time of hearing, the AR pointed out at the impugned order, the CIT(A) has placed reliance on the decisions of (i) First State Investment (Hong Kong) Ltd. reported in 33 SOT 26, (ii) Fidelity Investment Trust Fidelity Overseas Fund reported in 2009-TIOL-595-ITAT-Mum and (iii) American Century Twentieth Century International Discovery Fund, ITA No. 3602/Mum/2009, where identical issue has been adjudicated. The AR also placed on record another decision in the case of DDIT(IT) vs DWS India Equity Fund, ITA No. 5055/Mum/2010, where also, the issue has been adjudicated in the favour of the assessee. 4. .. 5. We have gone through the impugned order wherein the CIT(A) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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