TMI Blog2018 (12) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... irst appellate authority, we dismiss this ground of revenue’s appeal whereas the grounds raised by assessee, under Rule 27, in this regard, stands allowed. So far as the merits of the case is concerned, CIT(A), in our opinion has clinched the issue in right perspective since there is no bar under law from setting-off of the Short Term Capital Loss (STT Paid) suffered from transactions carried out through recognized stock exchange against the Short Term Capital Gains realized from off-market transactions. The same is in line with the statutory provisions of Section 74(1)(a). No infirmity in the impugned order, in this regard. The grounds raised by revenue stands dismissed. Resultantly, the revenue’s appeal stands dismissed. Disallowance u/s 14A - MAT computation - Held that:- We concur with the stand of Ld. AR that the matter stood squarely in assessee’s favour by the decision of Delhi Tribunal (Special Bench) rendered in ACIT Vs. Vireet Investment (P.) Ltd.[2017 (6) TMI 1124 - ITAT DELHI]. We hold that adjustment of disallowance u/s 14A was not required to be made in Book Profits for the purpose of Section 115JB. See M/S JSW ENERGY LTD. [2015 (5) TMI 823 - BOMBAY HIGH COURT]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 510/- 15% 3. Short Term Capital Gains (non- STT Paid) Rs.3,43,94,428/- 30% The return of income was filed by the assessee on 15/10/2010 declaring total income of ₹ 958.50 Lacs which was originally assessed u/s 143(3) on 30/12/2011 at ₹ 2687.65 Lacs. The assessed figures u/s 143(3) has been revised to ₹ 3687.65 Lacs after giving effect to the order of first appellate authority. Out of the same, an amount of ₹ 2729.33 Lacs is shown to be taxed at normal rates whereas the balance amount of ₹ 958.31 Lacs representing Short Term Capital Gains is shown to be taxed at concessional rate of 15%. From the aforesaid facts, it emerges that reassessment proceedings have resulted into application of higher rate of tax @30% on certain Short Term Capital Gains [STCG] of ₹ 343.94 Lacs as against 15% assessed u/s 143(3). However, there is no change in overall assessed income of the assessee. 2. The reassessment proceedings were initiated by issuance of notice u/s 148 dated 21/04/2014 which was followed by statutory notices u/s 143(2). The reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low the 1st and the 3rd grounds of appeal. At the same time, the grounds, on merits, were allowed by observing as under:- 7.8 I have considered the submissions of the Appellant. Section 70(2) does not debar the assessee from setting off short term capital loss suffered from transactions carried out through recognized stock exchanges against short term capital gain realized from off-market transactions. In the absence of any such restriction in the Act, the construction of provisions which is most favorable to the tax payer is required to be adopted which is a settled proposition in law which has also been clarified in CBDT Circular No 26(LXXXVI-3)(F.No.4(53)-IT/54) dated 7.07.1955. Therefore, I allow this ground of appeal . Aggrieved, the revenue is under appeal before us. The assessee has filed an application under Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963 supporting the impugned order on following grounds:- 1. On facts and circumstances of the case and in law the reopening of the assessment under section 143(3) is justified where no tangible material came to his possession to the conclusion that there is escapement of income as the reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of fulfillment of primary conditions as envisaged by Section 147 since Ld. AO had formed an opinion during assessment proceedings u/s 143(3) and adopted one of the possible view. Therefore, reopening was not justified on mere change of opinion. Hence, we agree with the conclusion drawn by Ld. CIT(A), though on different reasoning, that reassessment proceedings stood vitiated for want of fulfillment of jurisdictional condition as envisaged by law. Finding no infirmity in the stand of first appellate authority, we dismiss this ground of revenue s appeal whereas the grounds raised by assessee, under Rule 27, in this regard, stands allowed. 5. So far as the merits of the case is concerned, Ld. CIT(A), in our opinion has clinched the issue in right perspective since there is no bar under law from setting-off of the Short Term Capital Loss (STT Paid) suffered from transactions carried out through recognized stock exchange against the Short Term Capital Gains realized from off-market transactions. The same is in line with the statutory provisions of Section 74(1)(a). Therefore, we find no infirmity in the impugned order, in this regard. The grounds raised by revenue stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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