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2022 (10) TMI 1048 - AT - Income TaxCorrect head of Income - income from sale of shares - "Business Income” or “Capital Gains - HELD THAT:- The carry over loss is a nature of capital gain loss which the assessee can adjust with the capital gain profit of this year. AO erred to treat the income from capital gain as a business income. The Coordinate Bench is already covered the issue for A.Y. 2008-09 to 2010-11. We find no infirmity in the claim of the assessee the income as capital gain and eligible to adjust this gain with a capital gain loss. Proportionate deduction @21.35% on total expenses which is worked out amount u/s 57(iii) - CIT(A) disallowed the assessee’s claim in the ground that the assessee had not deducted TDS amount to Rs 613,789/- on payment of interest which is contravening the Section 40(a)(ia) of the Act. The appellant during the hearing unable to bring to details calculation related claim of Section 57(iii) in respect income from other sources. The ld. CIT. Dr only relied on order of the revenue authorities. In our opinion the claim of deduction u/s 57(iii) should be allowed amount. TDS u/s 195 - addition for violation of section 115QA - HELD THAT:- CIT(A)’s divergent view is related to application of section 115 QA. Since section 115QA was introduced in statute by Finance Act, 2013 with effect from 1-6-2013, payment made by assessee on account of purchase of its own shares prior to 1-6-2013 could not be termed as dividend as per provisions of section 115QA. The fact that section 115QA was not applicable to appellant company as the payment is related to FY 12-13. The order of CIT(A) is ruled out for wrong ascertaining fact against the assessee. Mr Dileep Raghu Nath is a NRI and a resident of Singapore and accordingly the provision of DTAA article 13, applied to him. As per the provisions of Indo Singapore DTAA jurisdiction for taxing the capital gains arising in the hands of Mr. Dileep Raghu Nath is in Singapore and not in India. Therefore, the application of section 195 is not applicable for assessee-company. Accordingly, the addition for violation of section 40(a)(ia) read with section 195 amount is quashed. Decided in favour of assessee.
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