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TMI Blog2022 (4) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal, the Revenue has raised following grounds:- "Whether on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing short term capital loss arising from STT paid transactions against short term capita gain arising from non-STT paid transactions? 3. The brief facts of the case pertaining to the only issue arising in present appeal, as emanating from the record are: The assessee Late Shri Yogiraj Jaichand Makar during his lifetime filed his return of income, for the year under consideration, on 30.07.2014 declaring total income of Rs. 83,93,526. The assessee died on or about 10.01.2016. Mr Puneet Yogiraj Makar, the son of the deceased assessee, is the legal heir and accordingly was taken on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee. Further, reliance was placed on various judicial precedents wherein Short Term Capital Loss, on which Securities Transaction Tax ("STT") was paid, was allowed to be set off against Short Term Capital Gain, on which STT was not paid. 6. The learned CIT (A) vide impugned order dated 15.07.2019 allowed the appeal filed by the assessee following judicial precedents on similar issue. Being aggrieved, the revenue is in appeal before us. 7. During the course of hearing, learned Departmental Representative ("learned D.R.") vehemently relied upon the order passed by the Assessing Officer. 8. On the other hand, learned Authorised Representative ("learned A.R.") appearing for the assessee submitted that the issue is covered in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee earned Long Term Capital Gain of Rs. 2,80,280. This Long Term Capital Gain was exempted under the Act as the assessee had paid STT on sale of the said shares at the Stock Exchange. The assessee further sold 8,38,911 shares at the Stock Exchange at the prevailing market price, for a consideration of Rs. 3,68,36,582. The cost to the assessee was Rs. 5,54,05,721. Thus, the assessee incurred Short Term Capital Loss of Rs. 1,85,69,139. The assessee also paid STT on sale of the said shares at the Stock Exchange. 11. The assessee adjusted the aforesaid Short Term Capital Loss of Rs. 1,85,69,139 which was chargeable to tax under section 111A @ 15% against Short Term Capital Gain of Rs. 2,46,87,281 which was chargeable to tax at the normal rate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acceptable. A perusal of the provisions of section 70(2) clearly shows that if there a short term capital loss, the assessee is entitled to have the said capital loss set off against any other short term capital gain. This right given to the assessee is unqualified and therefore the assessee is free to choose as to how the set of short term capital loss has to be claimed. The assessee has claimed the set off in such a manner that it results in payment of low taxes. That cannot be a ground to deny a legitimate right which the assessee has in law. This is the principle adopted by the CIT(A) in allowing relief to the assessee. We are of the view that the reasoning adopted by the CIT(A) is just and proper and calls for no interference. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national Emerging Markets Fund v. DCIT: [2013] 145 ITD 491 (Mumbai-Trib.) (b) Dy.DIT v. M/s DWS India Equity Fund: ITA No. 5055/Mum/2010 dated 11.04.2012 (c) DCIT v. M/s Housing Development Finance Corporation Ltd.: ITA No. 6397/Mum/2016 dated 19.06.2018 16. The learned DR could not show us any cogent reason to deviate from the aforesaid judicial precedents. Thus, in view of the aforesaid decisions, we find no infirmity in the impugned order passed by the learned CIT(A) allowing set off of Short Term Capital Loss (on which STT was paid) against Short Term Capital Gain (on which STT was not paid). Accordingly, only ground raised by the Revenue in present appeal is dismissed. 17. In the result, appeal by the Revenue is dismissed. Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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