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2018 (12) TMI 1256 - AT - Income TaxIncome / loss on account of foreign exchange transaction - assessed under the head capital gain or is exempt under Article–14(6) of India–Spain Double Taxation Avoidance Agreement (DTAA) - assessee company, is a tax resident of Spain - Held that:- Commissioner (Appeals) while deciding the issue in preceding assessment years referring to Article–14(4) of India–Spain tax treaty qua Article–13(4) of U.N. Model Convention has held that capital gain arising out sale of shares is not taxable in India. No doubt, in the impugned assessment year, the learned Commissioner (Appeals) has followed his orders passed for the earlier assessment years. Moreover, as could be seen from the facts on record, the assessee had incurred huge loss in assessment year 2009–10 as well as in the impugned assessment year. Admittedly, if the capital gain is held to be taxable in India, then the loss suffered by the assessee and carry forward of such loss is allowable to the assessee. However, no such benefit has been given to the assessee by the AO on the reasoning that assessee has not claimed it in the return of income. Thus, the assessee has been put to double jeopardy which, in our view, is unjust and improper. No reason to interfere with the decision of the learned Commissioner (Appeals) on the issue. - decided in favour of assessee.
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