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2015 (12) TMI 141 - AT - Income TaxRebate of claim u/s 88E - whether section 88E is a specific provision and, therefore, it has to be given preference over other provisions and the computation had to be made as contemplated under that section? - set off being claimed u/s 70 of the Act in regard to loss incurred by assessee on account of arbitrage and jobbing transactions on which admittedly STT was paid - Held that:- The object of Section 88E clearly is to protect the assessee from double taxation. Firstly, by way of payment of STT and secondly by way of income tax on the income earned from STT transaction. The concept of total income as contemplated under Section 2 sub-section (45) cannot be imputed here. The opening words of section 2 dealing with the definition are that unless the context otherwise requires. Therefore, the total income as contemplated u/s 88E is not same as contemplated u/s 2(45). It has been considered in entirely different context in section 88E. The term “total income” as interpreted by various decisions relied upon by ld. Counsel cannot be made applicable to the facts of the case which is in context to Section 88E. Therefore, we do not find any reason to interfere with the order of Ld. CIT(A) in holding that business loss occurred on arbitrage and job which were STT paid transactions could not be adjusted against the non-STT transaction belonging to clients. It had to be deducted from STT paid transactions only on assessee’s own account. There is one more reason. The rebate u/s. 88E is allowable from the tax paid. However, in case of arbitrage loss assessee had admittedly not paid any income tax. Therefore, if assessee’s plea is accepted then it would lead to double relief to assessee – firstly, by allowing set off u/s 70 against STT income and then allowing rebate from income-tax. This is definitely not the intention of legislature. We accordingly do not find any reason to interfere with the order of Ld. CIT(A) and ground taken by assessee is dismissed.
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