TaxTMI 
TaxTMI 
2014 (8) TMI 1225
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....nst the Short term capital gain (transactions without STT paid) ignoring the fact that section 70(2) of the I.T. Act states that set off of short term capital loss can be done only against similar computation of Short term capital gain, however, the assessee has set off the short term capital loss (transactions with STT paid) with the short term capital gain (transactions without STT paid) which is definitely not a similar computation of short term capital gain/loss as the tax rates are different for both the transaction in view of section 111A of the I.T. Act". 2. The assessee is a technical consultant and provides liaison services and acts as agent and earns commission income. In the return of income filed, the assessee set off brought....
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....e two companies were held back by the assessee, may be in anticipation of further price rise. From the share price movement of these scripts (as available on BSE and other sites), it is seen that after closure of buy back offers share prices started declining. Seeing sharp fall of prices, the assessee sold shares of M/s Punjab Tractors and M/s Lumax Industries through stock exchange and thus incurred losses detailed as under: Sr. No. Name of Scrip Date of sale Gain/Loss 1 Punjab Tractors 18-Jul-07 (24,495) 2 Lumax Industries 21-Jan-08 (1,21,214) 3 Lumax Industries 23-Jan-08 (9,77,020) 4 Lumax Industries 23-Jan-08 (28,14,111) Total (3936,840) 5.8 F....
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.... "Capital Gains" and consequently determination of total income, the applicability of Sec. 111A cannot be brought into play. That means that the fact of a particular capital gain being chargeable to tax at lower rate of tax has to be ignored. The same position is applicable to set off of intra head loss as also set off of unabsorbed loss. Therefore, whether a part STCL has arisen from STT transaction or non STT transaction is immaterial in computation of total income. It is held that the correct way of computation of STCG is to be aggregate all incomes under the STCG and all losses, current or otherwise, under the STCG and find the net capital gain chargeable to tax. It goes without saying, in the absence of any exclusive provision of which....
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....ngly". 5. Against this order of the CIT(A), the department is in appeal before the ITAT. 6. Before us, the DR relied on the order of the AO, whereas, the AR relied on the order of the CIT(A) and submitted that the language of section 70(2) says "similar computation made". The AR also placed reliance on the decision of First State Investment (Hongkong) Ltd. vs Asst. DIT, reported in 33 SOT 26 (Mum), wherein it was held, "In the instant case, the dispute was only about the choice of setting off of short-term capital loss suffered after the cut-off date against the short-term capital gain earned prior to the cutoff date. This position had arisen due to the introduction of section 111A for the first time from 1-4-2005 only, provi....
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....ate @ 30% is correct". it was decided, 1. ... 2. ... 3. At the time of hearing, the AR pointed out at the impugned order, the CIT(A) has placed reliance on the decisions of (i) First State Investment (Hong Kong) Ltd. reported in 33 SOT 26, (ii) Fidelity Investment Trust Fidelity Overseas Fund reported in 2009-TIOL-595-ITAT-Mum and (iii) American Century Twentieth Century International Discovery Fund, ITA No. 3602/Mum/2009, where identical issue has been adjudicated. The AR also placed on record another decision in the case of DDIT(IT) vs DWS India Equity Fund, ITA No. 5055/Mum/2010, where also, the issue has been adjudicated in the favour of the assessee. 4. .. 5. We have gone through the impu....