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2023 (5) TMI 1171 - ITAT KOLKATARevision u/s 263 by CIT - Debatable issue - admissibility of LTCL on securities - whether long term capital loss on securities (STT paid) can be adjusted against the non-STT paid long term capital gain resulting from securities or other assets? - whether the carrying forward of such loss is admissible? - HELD THAT:- We find merit AR argument that AO has taken one of the tow possible view while framing the assessment u/s 143(3) accepting the claim of the assessee in which the long term capital loss (STT paid) has been allowed to be set off and carried forward for future set off. The issue is debatable one and therefore jurisdiction u/s 263 of the Act is not available to PCIT in the case of debatable issue. As in the case of Kishorebhai Bhikhabai Virani [2015 (2) TMI 807 - GUJARAT HIGH COURT has been referred to by the Co-ordinate Benches namely Raptakos Brett & Co. Ltd. [2015 (6) TMI 529 - ITAT MUMBAI] and M/s Rare Investments [2019 (11) TMI 634 - ITAT MUMBAI] and after considering the same, the issue was decided in favour of the assessee. On the issue of non-availability of jurisdiction u/s 263 in case of debatable issue, we find support from the decision of Malabar Industrial Co. Ltd.[2000 (2) TMI 10 - SUPREME COURT] wherein it has been held that jurisdiction u/s 263 of the Act cannot be assumed in respect of a debatable issue which is reiterated in the case of CIT vs. Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT] - The case is also supported by the decision of Sunil Lamba [2019 (3) TMI 1254 - DELHI HIGH COURT] where referring to the two decisions of the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. (supra) and Max India Ltd. (supra) quashed the order passed u/s 263 of the Act on the ground that the issue is debatable one and ld PCIT has no jurisdiction. Assessee appeal allowed.
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