2025 (5) TMI 1794 - AT - Income Tax

Set off of short-term capital loss as incurred from the transaction in shares on which Securities Transaction Tax ( STT ) was paid - Whether short-term capital loss which is taxable at 15% can only be set off against the short-term capital gain which is taxable at 15%? Whether the short-term capital loss (on which STT was paid) can be set off against short-term capital gains (on which STT was not paid)? - HELD THAT - As per the provisions of section 70(2) of the Act the short-term capital loss can be set off against gain from any other capital asset. Section 70(2) of the Act does not make any further classification between the transactions where STT was paid and the transactions where STT was not paid. We find that while deciding a similar issue in iShares MSCI EM UCITS ETF USD ACC 2024 (6) TMI 148 - ITAT MUMBAI following the decision of Rungamatee Trexim (P.) Ltd 2008 (12) TMI 759 - CALCUTTA HIGH COURT allowed the set off of short-term capital loss (on which STT was paid) against the short-term capital gains (on which STT was not paid). No merit in the submissions of the learned DR. It is also pertinent to note that the emphasis on the term similar computation in section 70(2) of the Act only refers to the computation as provided under sections 48 to 55 of the Act. Thus we direct the AO to accept the methodology adopted by the assessee for the computation of the capital gains. As a result grounds raised in assessee s appeal are allowed.

The primary legal questions considered by the Tribunal in this appeal are:

1. Whether the short-term capital loss arising from transactions on which Securities Transaction Tax (STT) was paid can be set off against short-term capital gains arising from transactions on which STT was not paid, despite differing tax rates applicable under sections 111A and 115AD of the Income Tax Act, 1961 ("the Act").

2. Whether section 70(2) of the Act prescribes any hierarchy or restriction in the set-off of short-term capital losses against short-term capital gains, particularly with respect to STT applicability and differential tax rates.

3. Whether the Assessing Officer (AO) and the Dispute Resolution Panel (DRP) erred in rejecting the assessee's method of set-off and in taxing the gross short-term capital gains on transactions not subject to STT.

4. Whether the AO erred in levying interest under section 234C of the Act at a higher amount than claimed by the assessee.

5. Whether the initiation of penalty proceedings under section 270A of the Act alleging under-reporting of income was justified.

Issue-wise Detailed Analysis:

Set-off of Short-term Capital Loss Against Gains on Transactions With and Without STT (Grounds 1 to 4)

Relevant Legal Framework and Precedents: Section 70(2) of the Act permits set-off of short-term capital loss against income computed under a similar computation in respect of any other capital asset. Sections 45 to 55 of the Act govern the computation of capital gains, while sections 111A and 115AD specify tax rates applicable to short-term capital gains arising from transactions with and without STT respectively. Section 115AD applies specifically to Foreign Institutional Investors (FIIs).

The AO and DRP relied on the premise that since sections 111A and 115AD prescribe different tax rates (15% for STT transactions under 111A and 30% for non-STT transactions under 115AD), these provisions operate in distinct spheres and thus set-off should respect this distinction. The AO held that the short-term capital loss taxable at 15% should first be set off against gains taxable at 15%, and only thereafter against gains taxable at 30%, rejecting the assessee's approach of first setting off losses against gains taxable at 30%.

The assessee contended that section 70(2) does not prescribe any hierarchy or restriction based on tax rates or STT applicability, but only requires that the losses be set off against income computed under a similar computation (sections 48 to 55). The assessee relied on several judicial precedents where similar issues were decided in favour of the taxpayer.

Court's Interpretation and Reasoning: The Tribunal examined the language of section 70(2), which allows set-off of short-term capital loss against income computed under a similar computation for any other capital asset. The Tribunal emphasized that "similar computation" refers to the method of computing capital gains under sections 48 to 55, which do not address the rate of tax but only the computation mechanism.

The Tribunal noted the absence of any express provision in section 70(2) or elsewhere that restricts set-off based on differential tax rates or STT applicability. The Tribunal relied heavily on a coordinate bench decision in iShares MSCI EM UCITS ETF USD ACC vs. DCIT, wherein the Tribunal allowed set-off of short-term capital loss on which STT was paid against short-term capital gains on which STT was not paid, rejecting the Revenue's argument for a hierarchy of set-off based on tax rates.

The Tribunal also referred to the Hon'ble Calcutta High Court decision in CIT vs. Rungamatee Trexim (P.) Ltd., which held there is no provision compelling the assessee to first set off short-term capital loss with STT against short-term capital gain with STT before allowing set-off against gains without STT.

Other coordinate bench decisions cited by the Tribunal, including Emerging Markets Index Non-Lendable Fund vs. DCIT, Vanguard Total International Stock Index Fund vs. ACIT, JS Capital LLC vs. ACIT, and Dy.DIT vs. M/s. DWS India Equity Fund, reinforced the view that the set-off under section 70(2) is not restricted by STT applicability or differential tax rates.

Key Evidence and Findings: The Tribunal analyzed the computation of gains and losses presented by the assessee and AO, noting the assessee's methodology of setting off short-term capital loss (taxable at 15%) first against short-term capital gains taxable at 30%, resulting in a lower tax liability. The AO's approach, by contrast, disallowed this set-off sequence, increasing tax liability.

Judicial precedents and the statutory language of section 70(2) supported the assessee's approach as consistent with law and computation principles.

Application of Law to Facts: Applying the legal principles and precedents, the Tribunal concluded that the assessee's approach to set off short-term capital loss arising from STT-paid transactions against short-term capital gains from non-STT transactions is permissible under section 70(2). The Tribunal found no legal basis to impose a hierarchy of set-off based on differential tax rates or STT applicability.

Treatment of Competing Arguments: The Tribunal carefully considered the Revenue's argument that sections 111A and 115AD operate in distinct spheres due to different tax rates and that section 115AD, being a special provision for FIIs, overrides section 111A. However, the Tribunal found this argument unpersuasive in light of the statutory language of section 70(2) and binding judicial precedents. The Tribunal also noted that the issue was pending before the Hon'ble Bombay High Court but found the coordinate bench decisions to be authoritative for the present case.

Conclusions: The Tribunal allowed grounds 1 to 4, directing the AO to accept the assessee's method of set-off and recompute the capital gains accordingly.

Levy of Interest under Section 234C (Ground 5)

This issue was consequential to the computation of capital gains and was not adjudicated separately by the Tribunal. The Tribunal noted that since the interest under section 234C arises from the tax computation, it follows the outcome of the capital gains set-off issue and thus requires no separate adjudication.

Initiation of Penalty Proceedings under Section 270A (Ground 6)

The Tribunal found the initiation of penalty proceedings under section 270A for alleged under-reporting of income to be premature. No detailed adjudication on the merits of the penalty was undertaken, and the ground was dismissed accordingly.

Significant Holdings:

The Tribunal held that:

"Section 70(2) of the Act provides that short-term capital loss can be set off against income computed under a similar computation in respect of any other capital asset. The phrase 'similar computation' refers to the computation mechanism under sections 48 to 55 and does not contemplate any restriction or hierarchy based on the rate of tax or STT applicability."

"There is no provision in the Act compelling the assessee to first set off short-term capital loss on which STT was paid against short-term capital gains on which STT was paid before allowing set off against short-term capital gains on which STT was not paid."

"The assessee's method of setting off short-term capital loss arising from transactions subject to STT against short-term capital gains arising from transactions not subject to STT is in accordance with the provisions of section 70(2) of the Act and judicial precedents."

"The Assessing Officer and Dispute Resolution Panel erred in rejecting the assessee's approach and taxing the gross short-term capital gains on transactions not subject to STT."

"The initiation of penalty proceedings under section 270A of the Act was premature and is dismissed."

Accordingly, the Tribunal allowed the appeal on the issue of set-off of short-term capital losses and directed the AO to accept the assessee's methodology for computation of capital gains. The appeal was partly allowed, with consequential relief on interest and dismissal of penalty initiation.

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