TMI Blog2021 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... re beneficial than the provisions of the IS treaty. For the year under consideration, the Assessee has filed its return of income in accordance with the provisions of the Act. Based on judicial jurisprudence, the provisions of the IS treaty cannot be trusted upon the Assessee simply because the Assessee is a tax resident of a country with which India has entered into a tax treaty or on account of the mere perception of the AO that the Assessee may claim benefits under the tax treaty in subsequent years. Accordingly, we are of the view that the capital losses incurred from transactions in the Indian capital markets should be construed as income accruing or arising from transactions undertaken in India falling within the scope of section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;) respectfully submits that the learned AO has erred in passing the order on the following ground: 1. The learned AO has denied the Appellant's right to carry forward the short-term capital losses incurred during the Assessment Year 2012-13 amounting to ₹ 205,969,056/- to subsequent years, on the ground that the capital gains earned by the Appellant are exempt from tax under the Double Taxation Avoidance Agreement (DTAA) entered into between India and Singapore. In the course of issuing the final assessment order, the AO has ignored the following the provisions of section 90(2) of the Act which provides that where the Central Government has entered into an agreement with the Government of any country outside Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Double Taxation Avoidance Agreement (DTAA) with Singapore. Thus, in view of the provision of Section 90(2) of the Act, the provisions of the Act, to the extent more beneficial to the assessee would apply. The Assessing Officer has not accepted the scheme of the assessee and disallowed. The DRP also confirmed the action of the Assessing Officer. Aggrieved, assessee is in appeal before Tribunal. 4. Before us, the learned counsel for the assessee explained the fact that the Assessing Officer has claimed that since the capital gains earned by the Assessee is exempt under the provisions of the IS treaty, it follows that capital losses are to be ignored. Pursuant to concluding on the matter of capital losses for the current year, the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Goldman Sachs Investments (Mauritius) Ltd. Vs. DCIT (2020) 120 taxmann.com 23 (Mum-Trib.), wherein the following ground was adjudicated. The learned Counsel for the assessee took us through Para 12 of the order and finally stated that At this stage, we may herein observe that it is for the assessee to examine whether or not in the light of the applicable legal provisions and the precise factual position the provisions of the IT Act are beneficial to him or that of the applicable DTAA. In any case, the tax treaty cannot be thrust upon an assessee. In case the assessee during one year does not opt for the tax treaty, it would not be precluded from availing the benefits of the said treaty in the subsequent years. Our aforesaid view i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the Assessee simply because the Assessee is a tax resident of a country with which India has entered into a tax treaty or on account of the mere perception of the AO that the Assessee may claim benefits under the tax treaty in subsequent years. Accordingly, we are of the view that the capital losses incurred from transactions in the Indian capital markets amounting to ₹ 205,969,056 should be construed as income accruing or arising from transactions undertaken in India falling within the scope of section 5 of the Act and therefore, the same should be eligible to be carried forward to subsequent years in accordance with the provisions of section 74 of the Act. We allow this issue of assessee. 7. In the Result, the appeal of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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