TMI Blog2017 (4) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be made in similar manner under the same provisions. Therefore, STCL arising from STT paid transactions can be set off against STCG arising from non-STT transactions. - Decided in favour of assessee. - ITA No. 6727/MUM/2016 - - - Dated:- 10-4-2017 - SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) For The Assessee : Mr. Arvind Sonde, AR For The Revenue : Mr. B.S. Bist, DR ORDER PER N.K. PRADHAN, AM This is an appeal filed by the assessee. The relevant assessment year is 2012-13. The appeal is directed against the order of the Commissioner (Appeals) 58, Mumbai and arises out of order u/s 143(3) of the Income Tax Act, 1961 (the Act ). 2. The grounds of appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Briefly stated, the facts are that the assessee filed its return of income for the A.Y. 2012-13 reporting total income of ₹ 7,24,36,816/-. During the year, the assessee had earned Short Term Capital Gains (STCG) of ₹ 3,45,80,444/- from sale of shares which were subject to STT taxable at 15%. The assessee had suffered losses of ₹ 1,44,23,525/- from similar transactions. The assessee had also earned STCG of ₹ 14,15,08,175/- from transactions in derivatives which are taxable at 30%. The assessee had incurred losses on similar transactions at ₹ 8,92,28,278/-. It has computed its total loss at ₹ 10,36,51,803/-. While computing its taxable income, the assessee had first set off all its losses from the STCG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A will have to be computed separately while tax in respect of the remaining amounts has to be computed separately. This computation has nothing to do with section 70 / 71 as relied on by the assessee. The learned CIT(A) held that it is incorrect to introduce the ratio of setting off as contemplated u/s 70 / 71 while computing tax u/s 115AD wherein no such mandate has been given. Therefore, the learned CIT(A) upheld the action of the AO and dismissed the appeal filed by the assessee. 5. Before us, learned counsel of the assessee relies on the decision in the case of First State Investments (Honkong) Ltd. vs. ADIT (2009) (132 TTJ 218); Fidelity Investment Trust Fidelity Overseas Fund vs. ADIT (2010) (36 SOT 22) (ITAT Mum); DDIT vs. DWS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... setting off of STCL from one transaction against any other STCG, whether within or outside the cut off date i.e. 30.09.2004 and (ii) the assessee was justified in setting off STCL of later period against STCG of former period to the extent of excess STCG over STCL upto cut off date i.e. 30.09.2004. The above order has been followed by the Co-ordinate Bench in Fidelity Investment Trust Fidelity Overseas Fund (supra) and DWS India Equity Ltd. (supra). The decision in DWS India Equity Ltd. has been followed in Capital International Emerging Markets Fund (supra). In Rungamatee Trexim (P) Ltd. (supra), Hon'ble Calcutta High Court held as under: On perusal of the provision of section 70, I find that there is no prohibition nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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