TaxTMI 
TaxTMI 
2024 (12) TMI 1575
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....er section 144C(5) of the Act issued by the Hon'ble Dispute Resolution Panel - II, Mumbai (DRP-II) dated 22 September 2023 on the following grounds, each of which is without prejudice to and independent of the others: Ground of Appeal No. 1: Assessment proceedings completed by the learned ACIT based on a notice issued under section 143(2) of the Act, by the Assistant Commissioner of Income-Tax/ Deputy Commissioner of Income-Tax (International Taxation) - 1(1)(1), Delhi (i.e., non-jurisdictional officer) is invalid and liable to be quashed. 1. The learned ACIT erred in completing the assessment proceedings without issue of notice under section 143(2) of the Act as the notice to initiate the impugned proceedings was issued by the Assistant Commissioner of Income-Tax/ Deputy Commissioner of Income-Tax (International Taxation) - 1(1)(1), Delhi and consequently the impugned order passed by the learned ACIT is without jurisdiction, bad in law and liable to be quashed. Ground of Appeal No. 2 - 3: The Deputy Commissioner of Income-tax (international Tax) - 4(1)(1) [hereinafter referred to as 'the learned DCIT" erred in issuing an order under section 143(3....
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....rarchy for set-off of losses, the short-term capital loss arising from sale of shares subjected to STT can be first set-off against the short-term capital gains arising from sale of securities not subjected to STT instead of short-term capital gains arising from sale of shares subjected to STT. 8. The learned ACIT erred in not following the binding decisions of the jurisdictional Tribunal and rejecting the set-off merely because the Department has preferred an appeal before the jurisdictional High Court against one of the orders of the jurisdictional Tribunal. 9. Thus, the learned ACIT erred in raising a demand of IN 24,004,036. Ground of Appeal No. 6: Errors in computation sheet appended with order. 10. On account of the rejection of the manner of set-off of the losses as adopted by the Appellant, the learned ACIT erred in levying surcharge amounting to INR 345,801,182 instead of INR 329,100,807 as computed by the Appellant, and health & education cess of INR 105,979,249 instead of INR 100,857,800 as computed by the Appellant. 11. The learned ACIT erred in levying interest under section 234A of the Act amounting to INR 1,753,104 without....
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....t the same figure of Rs.6,35,68,115/-. 6.1. This can be further understood from the statement showing computation of total taxable income and tax liability which is as under:- 7. To justify its action, the assessee took a stand before the AO that Section 70 of the Act, provides for bifurcation of capital losses into short term capital loss and long-term capital loss. Long-term capital losses are permitted to be set off only against long term capital gains whereas long term capital losses are permitted to be set off against any capital gains. 7.1. It was further explained that the Act does not specify the manner and hierarchy of set off of short term capital losses against short term capital gains where the gains are subjected to different tax rates. 7.2. This contention of the assessee did not find any favour with the AO, who was of the firm belief that Section 115AD of the Act provides taxation @ 30% on short term capital gains where STT is not paid and Section 111A provides taxation @15% on short term capital gains where STT is paid. The AO further observed that nowhere in the Act there is a mention about the nature of adjustment of such STT paid and non-STT paid loss....
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....nbsp; (-) 7.17,660/- Short term capital gain with STT 2,27,564/- Net Short Term capital loss with STT (-) 4,90,096/- Short term capital gain without STT &....
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....without STT. According to the assessee, the chronology for the set off by the A.O. was contrary to chronology adopted by the assessee, only because the assessee's mode resulted in concessional rate of the tax being applied to higher amount of short term capital gain which resulted more tax benefit to an assessee. On perusal of the provision of section 70, I find that there is no prohibition nor the Act compels the assessee to first set off short term capital gain with STT against short term capital loss with STT and then allows set off against short term capital gain without STT. In absence of any specific mode of set off provided in the Act and in absence of any prohibition and in absence of any specific chronology for set off prescribed in the Act, the assessee was entitled to exercise his option with regard to the chronology of set off which was most beneficial to the assessee. It is settled proposition of law that when a provision of the Act gives option to the assessee, such option should be exercised which will favour the assessee and not the revenue. The A/R for the assessee was well justified in relying on the decision of the Calcutta High Court and the Circula....
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....442N PAN NON-RESIDENT STATUS TRUST ADORESS : GIO ERNST AND YOUNG LLP 14TH FLOOR, THE RUBY, ZI SENAPATI RAPAT MARG DADAR (WEST) DADAR (WEST) MUMELAI - 400028 STATEMENT SHOWING COMPUTATION OF TOTAL TAXABLE INCOME AND TAX LIABILITY Particuliers Amount Amount Short-term capital loss brought forwerd (223.701,502) Long term caplal loss brought forward Income under the hand Capital Gains Short-term capital gains u's 1118 of the Income tax Act. 1961 (The Act) .746.401.537 Add: Short term capital gants (omers) 747.738.907 2.488,640,444 Less: Short-term capital loas (current year) (616,271.201) Net Short-term Copaal Gains for the year 1.872.369.243 Total short-term capital gains chargeable to tax 1.646.667,741 Long-term capital gens (current year) taxable wis 112 of the Act 0 Less: Long-term capital loss (current yaag tasable w's 112 of me Act (1.172) CS.1723 Net LTCG/ LTOL for the year taxable uis 112 of the Act Long-term capital gains (current year) taxable uis 1124 of the Act 48.984.511.635 Less Long-term capital loss (surreni year taxable w's 1124 of the Act 143.812 394 502) 5,472,217,134 Niet Long-term Capital Gains/....