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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 ..... thout STT paid) ignoring the fact that section 70(2) of the I.T. Act states that set off of short term capital loss can be done only against similar computation of Short term capital gain, however, the assessee has set off the short term capital loss (transactions with STT paid) with the short term capital gain (transactions without STT paid) which is definitely not a similar computation of short term capital gain/loss as the tax rates are different for both the transaction in view of section 111A of the I.T. Act". 2. The assessee is a technical consultant and provides liaison services and acts as agent and earns commission income. In the return of income filed, the assessee set off brought forward short term capital loss of Rs. 19,22,326 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are price movement of these scripts (as available on BSE and other sites), it is seen that after closure of buy back offers share prices started declining. Seeing sharp fall of prices, the assessee sold shares of M/s Punjab Tractors and M/s Lumax Industries through stock exchange and thus incurred losses detailed as under: Sr. No. Name of Scrip Date of sale Gain/Loss 1 Punjab Tractors 18-Jul-07 (24,495) 2 Lumax Industries 21-Jan-08 (1,21,214) 3 Lumax Industries 23-Jan-08 (9,77,020) 4 Lumax Industries 23-Jan-08 (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 transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar capital gain being chargeable to tax at lower rate of tax has to be ignored. The same position is applicable to set off of intra head loss as also set off of unabsorbed loss. Therefore, whether a part STCL has arisen from STT transaction or non STT transaction is immaterial in computation of total income. It is held that the correct way of computation of STCG is to be aggregate all incomes under the STCG and all losses, current or 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 lower rate of tax on short-term capital against arising on the transactions which have suffered securities transaction tax. Such dispute is relevant only for the first year of the operation of the operation of this provision and cannot crop up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment 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) has extracted the relevant portion or the decision rendered in the case of First Investment (Hong Kong) Ltd, which reads as under, : ... 6. Taking into consideration the above cited cases and as per the extracted portion of First Investment (Hong Kong) Ltd. (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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