2013 (11) TMI 361

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..... raises a single issue, per its only effective ground, reading as under:      "1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that set off of loss of Short Term Capital Gain as claimed by the assessee is correct ignoring the provisions of Section 70(1) which requires the assessee to first compute the 'result' of the transaction in respect of a particular category and in case there is loss at this stage, then the assessee can set it off against gains from the same category of transaction." 3.1 At the very outset, it was sought to be mentioned by the ld. Authorized Representative (AR), the assessee's counsel, that the issue arising for adjudication in the instant case is covered .....

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..... tal gain." Similar view, he would continue, has also been taken by the tribunal in the case of Fidelity Investment Trust Fidelity Overseas Fund v. Addl. DIT (International Taxation) [2010] 36 SOT 22 (Mum) (URO). 3.2 The ld. Departmental Representative (DR), on being confronted with the said contention, while conceding to the issue arising for consideration being the same as that adjudicated by the decisions being relied upon, would yet place emphasis on the language of section 70(2), which is stated to be relevant for the purpose. No doubt, he would submit, that a loss arising in respect of a STCA could be set off against the income arising to the assessee for the relevant year on another STCA. So however, the statue employs the words 'si .....

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..... gains'. Reference thereto is therefore be to no moment; rather, would if at all signify that income on transfer of STCAs is regarded as one category or source of income u/s. 70(2). As explained by the tribunal in the case of First State Investments (Hong Kong) Ltd. (supra), the computation of income is a process anterior to the application of the tax rate, so that the differential in the tax rates is rendered as of no relevance. We, accordingly, find no infirmity in clarifying that the option to set off the loss arising under the same class of income, i.e., on STCA, notwithstanding the words 'similar computation' in section 70(2), would lie with the assessee, as explained by the tribunal in the case of Fidelity Investment Trust Fidelity O .....

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