TMI Blog2022 (7) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... nue is dismissed. Addition on account of Helicopter / air craft charges - HELD THAT:- As decided in own case [ 2022 (1) TMI 537 - ITAT MUMBAI] in the case of the assessee has allowed 1/7th of the expenses incurred by the assessee as personal. Ld.CIT(A) has relied on the above finding and accordingly, allowed the appeal filed by the assessee before him. No reason to disturb or interfere with the above finding. Accordingly, ground raised by the revenue is dismissed. Addition on account of software license charges - HELD THAT:- As decided in own case [ 2022 (1) TMI 537 - ITAT MUMBAI] CIT(A) allowed the software licence charges expenses claimed by the assessee by relying on case of DCIT v. Integrated Technology Solutions Pvt. Ltd [ 2016 (4) TMI 30 - ITAT MUMBAI] After considering the detailed findings of the Ld.CIT(A) we do not find any reason to interfere with the findings of the Ld.CIT(A). Therefore, the grounds raised by the revenue is dismissed. - ITA no.1436/Mum./2020 - - - Dated:- 5-7-2022 - Shri S. Rifaur Rahman, Accountant Member And Shri Sandeep Singh Karhail, Judicial Member For the Assessee : Shri Vijay Mehta For the Revenue : Shri Mehul Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, which is subject to payment of Securities Transaction Tax (STT). 5. We find that the Co ordinate Bench of the Tribunal in assessee s own case cited supra decided similar issue by observing as under: 10. Considered the rival submissions and material placed on record, we observe from the record that the assessee has claimed carryf orward of long term capital loss which assessee has incurred by making investment in M/s. Reliance Power Limited and this transaction involves the STT which assessee has paid while transfer of the above shares. No doubt the profit which assessee would have earned will be exempt from tax u/s. 10(38) of the Act. However, we observe from the submissions of both the parties and in our considered view the facts in the case relied by the Ld.CIT(A) in ACIT v. Smt Gauri AvinashB hosale (supra) and M/s. Raptakos Brett Co. Ltd, Mumbai v. DCIT (supra) are exactly same, for the sake of brevity we reproduce the extract in the case of M/s. Raptakos Brett Co. Ltd, Mumbai v. DCIT (supra): - 7. We have heard rival submissions and perused the relevant findings given in the impugned orders. The main issue before us is, whether Long term capital loss on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to be included while computing the total income then in such a case, the profit or loss resulting from such a source do not enter into the computation at all. However, if a part of the source is exempt by virtue of particular provision of the Act for providing benefit to the assessee, then in our considered view it cannot be held that the entire source will not enter into computation of total income. In our view, the concept of income including loss will apply only when the entire source is exempt and not in the cases where only one particular stream of income falling within a source is falling within exempt provisions. Section 10(38) provides exemption of income only from transfer of Long term equity shares and equity oriented fund and not only that, there are certain conditions stipulated for exempting such income i.e. payment of security transaction tax and whether the transaction on sale of such equity share or unit is entered into on or after the date on which chapter VII of Finance (No.2) Act 2004 comes into force. If such conditions are not fulfilled then exemption is not given. Thus, the income contemplated in section 10(38) is only a part of the source of capital gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was besieged with the following question Whether under s.10(27) read with s.70 of the I.T.Act, 1961, was the assessee entitled to set off the loss on the two heads, namely, Broodmares Account and the Pig Account, against its income of other sources under the head Business Their Lordships after analysing the provisions of section 70 and section 10(27) observed in the following manner: In this case it is important to bear in mind that set-off is being claimed under Section 70 of the 1961 Act which permits set off of any income falling under any head of income other than the capital gain which is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head. We have noticed that in the instant case the exclusion has been conceded in computing the business income or the source of income from the head of business and in computing that business income, the loss from one particular source, that is, broodmares account and the pig account, had been excluded contrary to the submission of the assessee. The assessee wanted these losses to be set off. The Revenue contends that as the sources of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computing its total income Thus, the ratio laid down by the Hon ble Calcutta High Court is clearly applicable and accordingly we follow the same in the present case. 9. Now coming to the argument of the learned DR and learned CIT(A) that income includes loss and if income is exempt then loss will also not be taken into computation of the income, and such an argument is with reference to the decision of Hon ble Supreme Court in the case of CIT vs. Hariprasad Company Pvt. Ltd. (1975) 99 ITR 118. The Hon ble Supreme Court, opined that, if loss was from the source or head of income not liable to tax or congenitally exempt from income tax, neither the assessee was required to show the same in the return nor was the Assessing Officer under any obligation to compute or assess it much less for the purpose of carry forward. Further, the Hon ble Supreme Court observed that From the charging provisions of the Act, it is discernible that the words ' income ' or ' profits and gains' should be understood as including losses also, so that, in one sense 'profits and gains' represent ' plus income ' whereas losses represent 'minus income'. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his distinction has to be kept in mind. Hon ble Calcutta High Court in Royal Turf Club have discussed the aforesaid decision of the Hon ble Supreme Court and held that the same will not apply in such cases. Thus, in our conclusion, we hold that section 10(38) excludes in expressed terms only the income arising from transfer of Long term capital asset being equity share or equity fund which is chargeable to STT and not entire source of income from capital gains arising from transfer of shares. It does not lead to exclusion of computation of capital gain of Long term capital asset or Short term capital asset being shares. Accordingly, Long term capital loss on sale of shares would be allowed to be set off against Long term capital gain on sale of land in accordance with section 70(3). 11. Following the aforesaid decision in case of Raptakos Brett Co. Ltd. v. DCIT (supra) has attained finality as the appeal preferred by the department against the said decision has been dismissed by the Hon ble Jurisdictional High Court, though, due to non-prosecution. Thus, we do not find any infirmity in the order of the Ld.CIT(A) in allowing the claim of carry forward of Long Term Capital Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er / air craft charges. 11. We find that the Co ordinate Bench of the Tribunal in assessee s own case cited supra decided similar issue by observing as under: 32. Considered the rival submissions and material placed on record, we observed that the Coordinate Bench after considering the facts in the case of the assessee has allowed 1/7th of the expenses incurred by the assessee as personal. Ld.CIT(A) has relied on the above finding and accordingly, allowed the appeal filed by the assessee before him. After considering the finding of the Ld.CIT(A) we do not find any reason to disturb or interfere with the above finding. Accordingly, ground raised by the revenue is dismissed. 12. As similar issue is arising in the present appeal, we see no reason to deviate from the view so taken by the Co ordinate Bench of the Tribunal in assessee s own case cited supra. Therefore, respectfully following the aforesaid decision, ground no.3, raised in Revenue s appeal is dismissed. 13. The issue arising in ground no.4, raised in Revenue s appeal is pertaining to addition on account of software license charges. 14. We find that the Co ordinate Bench of the Tribunal in assessee s own ..... X X X X Extracts X X X X X X X X Extracts X X X X
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