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2017 (11) TMI 1940 - AT - Income TaxLong Term Capital Loss carried forward - transaction is covered with purview of provision of section 10(38) - HELD THAT:- We notice that the Ld. CIT (A) has decided the issue in favour of the assessee relying on the decision of the Co-ordinate Bench of the ITAT rendered in the case of Raptakos Becott & Company Ltd. vs. DCIT [2015 (6) TMI 529 - ITAT MUMBAI] In Kishorebhai Bhikhabhai Virani Vs. ACIT [2015 (2) TMI 807 - GUJARAT HIGH COURT] the Hon’ble Gujarat High Court has decided the identical issue against the assessee and dismissed the appeal of the assessee wherein held contention of the learned counsel for the assessee that for the purpose of section 10(38) of the Act term “income” would not include “loss” cannot be accepted and rightly rejected by the Tribunal. If this is available for set off the Tribunal rightly relied on the decision in the case of Harprashad & Co. (P.) Ltd. [1975 (2) TMI 2 - SUPREME COURT] to come to a conclusion that the term “income” under section 10(38) of the Act would also include the loss. In the said decision, the apex court observed that the concept of carry forward of loss does not stand in vacuo. It involves the notion of set off it postulates permissibility and possibility of the carried forward loss being absorbed or set off against the profits and gains profit to reduce the tax demand. It was held that if such set off is not permissible or possible owing to the income or profits of the subsequent year being from a non-taxable source, there would be no point in allowing loss to be “carried forward”. Conversely, if the loss arising in the previous year was under a head not chargeable to tax, it could not be allowed to be carried forward and absorbed against income in a subsequent year, from a taxable source. - Decided against assessee.
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