TMI Blog2009 (8) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... ort-term capital loss suffered by the assessee in the period before the cut-off date should be set-off against the short-term capital gain of that period and the remaining amount of Rs. 28.39 lakhs (Rs. 36.54 lakhs - Rs. 8.14 lakhs) be taxed at the rate of 30 per cent. HELD THAT:- Our view about the vesting of the discretion in assessee for the purposes of set-off of short-term capital loss against any short-term capital gain is fortified when the language of sub-section (3) of section 70 is considered, which specifically prohibits the setting-off of long-term capital loss against short-term capital gain. In the absence of any stipulation in this regard in sub-section (2), we are satisfied that the choice has been left over to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of interest u/s 234B - Considering the fact that the assessee is non-resident, the levy of interest u/s 234B is uncalled for as all the payments to any non-resident assessee attract the TDS provisions. Accordingly, this ground is allowed. In the result, appeal of the assessee is allowed. - R.K. GUPTA AND D. KARUNAKARA RAO, JJ. Percy Pandiwalla for the Appellant. L.K. Agarwal for the Respondent. ORDER D. Karunakara Rao, Accountant Member - This is the appeal by the assessee against the order of the CIT(A)-XXXIII dated 14-7-2008. The grounds raised by the assessee read as under : "Based on the facts and circumstances of the case, in view of the provisions of the Income-tax Act, 1961 ( the Act ), and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts relied upon. There is no dispute on the fact that assessee earned short-term capital gain up to 30-9-2004, being the cut-off date for the application of lower tax rates on the short-term capital gains where the transaction has suffered securities transaction tax, at Rs. 36.54 lakhs and post 30-9-2004 at Rs. 472.16 lakhs thereby making the total short-term capital gain at Rs. 508.70 lakhs. As against this, the assessee suffered short-term capital gain at Rs. 8.14 lakhs up to September 30, 2004 and Rs. 169.23 lakhs in the post September 30,2004 period. There is further no dispute that the assessee is entitled to set-off the short-term capital gain includible in the gross total income has not been disturbed by the Assessing Officer. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered after the cut-off date against the short-term capital gain earned prior to the cut-off date. This position has arisen due to the introduction of section 111A for the first time from this year only which provides for lower rate of tax on short-term capital gains arising on the transactions which have suffered securities transaction tax. It is further pertinent to mention that such dispute is relevant only for the first year of the operation of this provision and cannot crop up in the later years. Here we are concerned with the set-off of short-term capital loss from one or more transactions concerned with the set-off of short-term capital loss from one or more transactions with the short-term capital gain from one or more transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-term capital loss from the first transaction ought to be set-off against the short-term capital gain of the transactions No. 2 or 3 or 4 etc., as the case may be. Our view about the vesting of the discretion in assessee for the purposes of set-off of short-term capital loss against any short-term capital gain is fortified when the language of sub-section (3) of section 70 is considered, which specifically prohibits the setting-off of long-term capital loss against short-term capital gain. It has been provided in unambiguous words in sub-section (3) that the long-term capital loss can be set-off only against long-term capital gain and not against the short-term capital gain, if the intention of the Legislature had been not to confer the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansactions resulting into short-term capital gain viz., those taxable in the first period at the rate of 30 per cent and those taxable in the second period at the rate of 10 per cent and "similar computation made" refers to either of the two. In our considered opinion, there is a basic fallacy in view adopted by the learned CIT(A) on this issue. Sections 111A and 115D fall in Chapter XII, which provides for determination of tax in certain special cases. Thus it is clear that all these sections from 110 to 115BC provide for a particular rate of tax to be applied on the incomes covered under these sections individually. Hence, these sections do not deal with the computation of income but only provide for the rate of tax applicable on the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
