TMI Blog2022 (4) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... to short term capital asset brought forward to be set off of capital gain earned in respect of any other capital asset. Accordingly, appeal filed by the learned Assessing Officer is dismissed. Accordingly, all the three appeals filed by the learned Assessing Officer are dismissed. - ITA No. 122/Mum/2021 And ITA No. 136/Mum/2021 And ITA No. 124/Mum/2021 - - - Dated:- 19-4-2022 - Shri Prashant Maharishi, AM And Shri Pavan Kumar Gadale, JM For the Assessee : Shri Vijay Mehta, AR For the Revenue : Shri Jasbir Chouhan, CIT DR ORDER PER PRASHANT MAHARISHI, AM: 01. Appeal in ITA 122/Mum/2021 is filed by Dy. Commissioner of income-tax, Central Circle-2(3), Mumbai (the learned Assessing Officer), for Assessment Year 2012-13 against the order passed by the Commissioner of income-tax (Appeal)-48, Mumbai [the learned CIT(A)] dated 25th November, 2020. 02. The learned Assessing Officer has raised the following grounds of appeal:- 1. On the fact and circumstances of the case the Ld. CIT(A) is justified in allowing assessee's claim of set off Long Term Capital Gain of ₹ 2,99,94,793/- on immovable property against brought forward Long Term Capital Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the disallowance made by the learned Assessing Officer of set off of losses were already the part of proceedings under section 143(3) of the Act which are repeated in assessment order passed under section 153A of the Act without any incriminating material. Even otherwise, he submitted that the addition made originally in the order passed under section 143(3) of the Act by the learned Assessing Officer travelled up to the co-ordinate Bench where relief was allowed to the assessee therefore these additions/ disallowances could not have been made in order passed under section 153A of the Act. 09. We have carefully considered the rival contentions and find that in the original assessment order passed under section 143(3) of the Act, the disallowance of set off of brought forward long term capital loss arising on sale of STT paid shares against Long term capital gain earned in this year of ₹ 2,99,94,793 was made which travelled up to the co-ordinate Bench and relief was granted to the assessee. In proceedings under section 153A of the Act initiated on account of search dated 21st July 2017, the additions / disallowance could have been made to the already concluded ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Ld. CIT(A) erred in restricting the disallowance under section 14A to exempt income earned without appreciating the fact that circular no. 5 of 2014 dated 11th February, 2014, issued by the Central Board of Direct Taxes clearly provides for disallowance of the expenditure even where taxpayer in a particular year has not earned any exempt income. 015. The brief facts of the case shows that assessee filed her return of income on 4th August, 2016 at ₹ 90,71,190/-. The return was processed under section 143(1) of the Act. Consequent to search under section 132 of the Act on 21st July 2017, notice under section 153A of the Act was issued on 4th September 2018. Assessment order was passed at the total income of ₹ 7,10,42,975/-. The learned Assessing Officer disallowed ₹ 6,78,176/- under section 14A of the Act. Further as per computation of income, assessee has earned income from long term capital gain of ₹ 2,59,93,609/- as well as short term capital gain of ₹ 3,78,67,597/- out of which ₹ 81,20,956/- is set off against brought forward capital loss on sale of shares on which STT is paid from assessment year 2011 12 and ₹ 5,31,72,653/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term capital loss earned on STT paid shares, he submitted that identical issue arose in the case of assessee in earlier years where co-ordinate Bench has allowed the claim following the decision of co-ordinate Bench. 021. We have carefully considered the rival contentions. In the first ground, the Assessing Officer is challenging the set off of brought forward long term capital loss of ₹ 81,20,956/- arising out of shares on which STT is paid for Assessment Year 2011-12 against long term capital gain earned during the year. On the merits of the case, the issue is squarely covered against the assessee by the decision of co-ordinate Bench in APOLLO Tyres Ltd vs DCIT 130 taxman.com 295. However, the tax effect involved in this appeal on the first ground where addition/ disallowance is ₹ 81,20,956/- and disallowance deleted in ground No.2 is ₹ 296208/- combined tax effect on these two grounds is less than ₹ 50 lacs. Therefore, the Assessing Officer should not have filed this appeal on the ground of low tax effect. Accordingly, without going into the merits of the case, as the tax effect in old in this appeal is less than ₹ 50 lakhs, we dismiss this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 5,67,45,907/-. Therefore, he submitted that the ground raised by the learned Assessing Officer is erroneous. 027. The learned departmental representative also confirmed the same. 028. We have carefully considered the rival contentions and perused the orders of the lower authorities. As per page no. 2 paragraph no. 4 of the assessment order, the learned Assessing Officer has categorically noted that assessee has income from long term capital gain of ₹ 21,77,41,908/-. The assessee has brought forward short term capital loss from Assessment Year 2010-11 of ₹ 5,67,45,907/-. The ground raised before us is that above carried forward loss of ₹ 5,67,45,907/- is long term capital loss. As assessee has not claimed set off of any brought forward long term capital loss but has claimed set off of short term capital loss of ₹ 5,67,45,907/-, the ground of appeal raised by the Assessing Officer is not sustainable in view of the provisions of Section 74(1)(a) of the Act, which allows set off of loss related to short term capital asset brought forward to be set off of capital gain earned in respect of any other capital asset. Accordingly, appeal filed by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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