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TMI Blog2023 (5) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and wrong order u/s 263 of the Act by the Ld. PCIT thereby wrongly setting aside the assessment framed u/s 143(3) of the Act dated 01.05.2019. 3. Facts in brief are that the Ld. PCIT observed that from the assessment records that the AO has wrongly allowed the setting off of long term capital loss on mutual fund (STT paid) against the long term capital gain on mutual fund (non-STT paid) and wrongly allowed the unabsorbed balance loss to be carried forward for future set off. According to Ld. PCIT, the loss on which STT was paid could not be adjusted against the long term capital gain on mutual fund (non-STT paid) in view of the provisions of Section 10(38) of the Act as the long term capital loss (STT paid ) is a negative income. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Gujarat High Court in the case of Kishorebhai Bhikhabhai Virani vs. ACIT in [2015] 55 taxmann.com 91 (Guj) dated 13.01.2014 wherein the Hon'ble High Court has taken a view against the assessee. The Ld. A.R also pointed out that the said decision of the Hon'ble High Court has been considered in the two decisions by the Tribunal as referred to above namely Raptakos Brett & Co. Ltd. vs. DCIT (supra) and M/s Rare Investments vs. CIT (supra) and after considering the decision of the High Court, the issue was decided in favour of the assessee. The Ld. A.R therefore submitted that the issue is highly debatable as the AO has taken a view in favour of the assessee when the decisions are available both in favour of the assessee and against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely M/s United Investments vs. ACIT , DCIT vs. Shri Avinash N. Bhosle, Raptakos Brett & Co. Ltd. vs. DCIT and M/s Rare Investments vs. CIT as as referred to before us by the ld AR which have been decided in favour of the assesse on merits. We have also perused the decision by Hon'ble Gujarat High Court in the case of Kishorebhai Bhikhabai Virani (supra) which has decided the issue against the assesse meaning thereby that there are two views possible on the above issue. Thus we find merit in the arguments of ld AR that AO has taken one of the tow possible view while framing the assessment u/s 143(3) dated 1.5.2019 accepting the claim of the assessee in which the long term capital loss (STT paid) has been allowed to be set off and carried fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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