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of <h1>Tribunal allows delay in appeal filing, restricts carry forward of long-term capital loss</h1> <h3>Mr. Nikhil Sawhney Versus ACIT, Central Circle, Noida</h3> Mr. Nikhil Sawhney Versus ACIT, Central Circle, Noida - TMI Issues Involved:1. Condonation of delay in filing the appeal.2. Allowability of carry forward of long-term capital loss on STT-paid transactions.Issue-wise Detailed Analysis:Condonation of Delay:The appeal was filed with an 18-day delay. The appellant cited reasons including the receipt of the appellate order by an executive of the employer company, confusion about the appropriate forum for filing the appeal, and a subsequent delay in forwarding the order to the counsel. The Tribunal found the delay to be minor and supported by justifiable reasons. It referenced the Supreme Court's liberal approach in condoning delays where sufficient cause is shown, as established in 'The Collector of Land Acquisition vs. MST Khatiji 167 ITR 471'. The Tribunal condoned the delay and admitted the appeal, emphasizing that issues should be decided on their merits rather than dismissed on technical grounds.Allowability of Carry Forward of Long-term Capital Loss:The appellant incurred a long-term capital loss of Rs. 90,80,571 on STT-paid transactions, which was not claimed in the revised return. The appellant argued that such losses should be allowable for set-off and carry forward, relying on judicial precedents, including the Calcutta High Court's decision in 'Royal Calcutta Turf Club 144 ITR 709'. The appellant contended that capital gains as a source of income are not completely exempt from tax, and only specific income arising from such transactions is exempt under Section 10(38) of the Income Tax Act.The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) (CIT(A)) rejected this contention, holding that the term 'income' includes 'loss'. Therefore, the exemption under Section 10(38) applies to both positive and negative income. The AO maintained that since the appellant did not claim the loss in the revised return, it could not be allowed.The Tribunal analyzed various judicial precedents, including the Supreme Court's decisions in 'CIT vs. Harprasad & Co. (P.) Ltd. [1975] 99 ITR 118' and 'CIT vs. Karamchand Premchand Ltd. (1960) 40 ITR 106'. It noted that the term 'income' includes 'loss', and if income from a source is exempt, the loss from that source cannot be included in the computation of total income. The Tribunal also referenced the Gujarat High Court's decision in 'Kishorebhai Bhikhabhai Virani vs. ACIT [2015] 55 taxmann.com 91', which held that losses from exempt sources are not allowable for set-off or carry forward.The Tribunal concluded that the provisions of Section 10(38) exclude both positive income and losses from the computation of total income. It held that the appellant's long-term capital loss on STT-paid transactions could not be set off or carried forward, affirming the decisions of the AO and CIT(A). The Tribunal dismissed the appellant's appeal, emphasizing that the law is settled that 'income' includes 'loss' and that losses from exempt sources cannot be included in the computation of total income.
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