TaxTMI 
TaxTMI 
2024 (8) TMI 1567
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....ional Taxation, Circle - 2 (2) (1), Mumbai (the learned AO) dated 15/10/2023 wherein the return of income filed by the assessee on 27/12/2021 at a total income of Rs. 923,071,640/- was assessed at Rs. 992,154,207/-, passed in pursuance of direction of The Dispute Resolution Panel - 1, Mumbai (the learned DRP) dated 12/9/2023. 2. Assessee is aggrieved and has raised 12 grounds of appeal including ground number 2 and 3 challenging the validity of the assessment order holding it to be time barred as well as invalid. Ground number 1 is general in nature, ground number 9 is against the levy of interest under section 234A, ground number 10 against the levy of interest under section 234B and ground number 11 on levy of interest under section 23....
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....1,255) 3 Net short-term capital loss which is subject to security transaction tax (1,45,58,650) 4 And short-term capital gains (subject to security transaction tax and taxable as per section 115AD read with section 111A of the act at the rate of 15% 5,20,75,459 5 Net short-term capital gain subject to security transaction tax and taxable as per section 115AD read with section 111A of the act at the rate of 15% Three 75,16,809 6 Less brought forward short-term capital loss 3,75,16,809 7 Total short-term capital gains chargeable to tax Nil 5. Therefore, from the above it is apparent that the assessee has set off short-term capital loss(ST to paid) first against short-term capital gain(non-securi....
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....e brought forward of short-term capital loss on which STT is paid is allowed to be carried forward. 6. The learned assessing officer computed short-term capital gain of the assessee as under:- Serial number particulars Taxed at the rate of 15% Taxed at the rate of 30% 1 Short-term capital gain 5,20,75,459 7,07,82,605 2 Short-term capital losses other than those covered under section 111 A of the act Nil Nil 3 Less current year's short-term capital losses 8,53,41,255 Nil 4 Net taxable short-term capital gain/loss 3,32,65,796 7,07,82,605 7. The learned authorized representative referred to the provisions of section 70 of the income tax act and submitted that that this section d....
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.... in computing the tax liability the short-term capital loss may be first set of against short-term capital gain taxable at the rate of 30% and the balance be set off against short-term capital gain taxable at the rate of 15%. Once again he submitted that in absence of any provisions to the contrary in the act, the assessee may adopt the basis that is most beneficial to it, even if such a basis has the effect of reducing the overall tax liability. He placed reliance on the decision of the honourable Kolkata High Court in ITA number 812 of the eight dated 19 December 2008, decision of special bench in 100 ITD 217. He further referred to several judicial precedents. He further stated and has drawn our reference towards the intimation under sec....
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....rdingly, it was submitted that the orders of the learned lower authorities deserve to be confirmed. 9. We have carefully considered the rival contentions and perused the orders of the learned assessing officer, direction of the learned dispute resolution panel. The facts are tabulated already in abovementioned paragraphs wherein the rival contentions are tabulated. The short controversy here is with respect to set off of losses from one source against income from another source under the same head of income. Provisions of section 70 (2) deals with the situation wherein there is a loss in respect of any short-term capital asset, the assessee is allowed to have the amount of such loss set of against the income, as arrived at under a simila....
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....re is no restriction of set-off of capital losses and capital gain if both are taxed at a different rate. The word 'similar computation' is with respect to the mode of computation as prescribed under section 48 to section 55 of the act. Sections covered in this bracket are not concerned or prescribing any rate of tax on capital gain. This issue is squarely covered in favour of the assessee by the decision of the coordinate benches in (1) JS Capital LLC v ACIT (International Taxation)[2024] 160 taxmann.com 286 (Mumbai - Trib.) and (2) iShares MSCI EM UCITS ETF V Deputy Commissioner of Income-tax (International Taxation[2024] 164 taxmann.com 56 (Mumbai - Trib.).further, situation may arise that where the assessee has incurred a short term cap....