DDIT (IT) 1(2), MUMBAI V. CENTRAL STATE SOUTHEAST AND SOUTH WEST AREAS PENSION FUND, MUMBAI

ITA 3986/MUM/2010

• Counselvise Citation: 398619914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 15-09-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALEXANDER CHANDY
• Assessee Lawyers: F V IRANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI B. RAMAKOTAIAH (ACCOUNTANT MEMBER) ITA NO. 3986/MUM/2010 ASSESSMENT YEAR-2005-06 THE DDIT(IT)-1(2), SCINDIA HOUSE, 1 ST FLOOR, BALLARD ESTATE, MUMBAI-400 038 VS. M/S. CENTRAL STATE SOUTH EAST & SOUTH WEST AREAS PENSION FUND, C/O M/S. SB BILLIMORIA & CO., CAS, MEHER CHAMBERS, 2 ND FLOOR, R. KAMANI ROAD, BALLARD ESTATE, MUMBAI-400 001 PAN-AAAAC 1339D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ALEXANDER CHANDY RESPONDENT BY: SHRI F.V. IRANI DATE OF HEARING : 15.09.2011 DATE OF PRONOUNCEMENT: 28.09.2011 O R D E R PER B.R. MITTAL, JM : THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMEN T YEAR 2005-06 AGAINST THE ORDER OF LD. CIT(A) DT. 10.02.2010 ON T HE FOLLOWING GROUND: ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN L AW, THE CIT(A) ERRED IN DIRECTING THE AO TO ALLOW SET OFF O F SHORT TERM CAPITAL LOSS (STT PAID) OF RS. 15,38,937/- AGAINST SHORT TERM CAPITAL GAIN (NON-STT PAID) OF RS. 6,15,24,087/-. 2. AT THE TIME OF HEARING, LD. AR SUBMITTED THAT LD . CIT(A) HAS DECIDED THE ISSUE BY CONSIDERING THE DECISIONS OF ITAT MUMB AI BENCH IN THE CASE OF FIRST STATE INVESTMENTS (HONGKONG) LTD. VS ADIT (IN TL TAXATION)(2009) (33 SOT 26) AND FIDELITY INVESTMENT TRUST FIDELITY OVER SEAS FUND VS ADIT (INTERNATIONAL TAX) (2009-TIOL-595-IATAT-MUM) WHEREIN IT HAS BEEN HELD THAT THERE IS NO PROHIBITION IN SEC. 70 IN THE MATT ER OF SET OFF OF SHORT TERM ITA NO. 3986/M/2010 2 CAPITAL LOSS BEFORE AND AFTER THE CUT OF PERIOD OF 1 ST APRIL , 2004. THAT THE ASSESSEE HAS THE OPTION TO SET OFF OF THE SHORT TE RM CAPITAL LOSS AGAINST SHORT TERM CAPITAL GAINS AS PER THE PROVISIONS OF SEC. 70 (3) R.W.S. 111A AND 115AD OF THE ACT. HE SUBMITTED THAT LD. CIT(A) BY FOLLOW ING THE ABOVE DECISIONS OF THE HONBLE ITAT IN THE CASE OF FIRST STATE INVESTM ENTS (HONGKONG) LTD. VS ADIT (INTL TAXATION)(2009) AND FIDELITY INVESTMENT T RUST FIDELITY OVERSEAS FUND VS ADIT (INTERNATIONAL TAX) (SUPRA) HAS DIRECTE D THE AO TO ALLOW THE SET OFF OF THE SHORT TERM CAPITAL LOSS OF RS. 15,38,937 /- (STT PAID) AS AGAINST SHORT TERM CAPITAL GAINS OF RS. 6,15,24,087/- EARNE D ON (NON STT PAID TRANSACTION). THE LD. AR SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF ITAT MUMBAI BENCH (SUP RA). 3. THE LD. DEPARTMENTAL REPRESENTATIVE HAD NOT DISP UTED THE ABOVE CONTENTION OF LD. AR AND CONCEDED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY EARLIER DECISIONS OF ITAT MUMBAI BENCHE S IN THE CASE OF FIRST STATE INVESTMENTS (HONGKONG) LTD. VS ADIT (INTL TAX ATION)(2009) AND FIDELITY INVESTMENT TRUST FIDELITY OVERSEAS FUND VS ADIT (INTERNATIONAL TAX) (SUPRA). 4. IN VIEW OF ABOVE SUBMISSIONS OF LD. REPRESENTATIV ES OF THE PARTIES AND CONSIDERING EARLIER DECISIONS OF ITAT MUMBAI BENCHE S (SUPRA), WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A ). ACCORDINGLY, WE UPHOLD HIS ORDER BY REJECTING THE GROUND OF APPEAL TAKEN B Y THE DEPARTMENT. 5. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED ON THIS 28 TH DAY OF SEPTEMBER, 2011 SD/- SD/- ( B. RAMAKOTAIAH) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 28 TH SEPTEMBER, 2011 RJ ITA NO. 3986/M/2010 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR C BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 3986/M/2010 4 DATE INITIALS 1. DRAFT DICTATED ON: 15.9.2011 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 15.09.2011 SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: SR. PS/PS 9. DATE ON WHICH FILE GOES TO AR 10. DATE OF DISPATCH OF ORDER: