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Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
Before: SHRI VIKRAM SINGH YADAVSHRI SANDEEP SINGH KARHAIL
Date of Hearing – 24/07/2025 Date of Order - 28/08/2025
O R D E R PER SANDEEP SINGH KARHAIL, J.M.
The assessee has filed the present appeal against the impugned order dated 18.11.2024, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals)-55, Mumbai, [“learned CIT(A)”], for the assessment year 2022-23.
In this appeal, the assessee has raised the following grounds:
– 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not considering the net Long Term Capital Gain/Loss prior to 1st April, 2017 aggregating to Rs. 38,60,93,938/- and on or after 1« April, 2017 aggregating to Rs. (17,96,11,994/-) separately as per Article 13 Para 4 and Article 13 Para 3A of India Mauritius DTAA for taxability.
2. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in rejecting the additional grounds of appeal after having admitted the same on the ground that the appellant has not proved its claim with supporting documents /evidence which is improper especially when the appellant has furnished the following to the Commissioner of Income Tax (Appeals) 55 vide letter dated 12th November, 2024 :- a) TRC of the appellant issued by the Mauritius Revenue Authority b) Statement of Capital Gain/Loss for shares purchased prior to 1st April, 2017 c) Statement of Capital Gain/Loss for shares purchased after to 1st April, 2017 d) Copy of ITR Form filed e) Intimation under section 143(1) of the Income Tax Act, 1961
3. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in not allowing the carry forward of long term capital loss amounting to Rs.17,96,11,996/- as per section 74 of the Income Tax Act by not appreciating and not following the provisions with regards to grand fathering in the India Mauritius DTAA as per Article 13.
4. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in not considering the claim of your appellant on merits and in further incorrectly observing that "the appellant has sought to claim long term capital gains as exempt under DTAA, but for the same source of income being long term capital loss, it has sought to carry it forward by referring to the provisions of Income Tax Act, which is not permissible as per law and also as per above order of ITAT, Mumbai".
5. On the facts and in the circumstances of the case and in law, the learned Assessing Officer erred in resorting to enhancement u/s 251 of the Income Tax Act without giving adequate and proper opportunity and without following proper procedures.”
The solitary grievance of the assessee, in the present appeal, is against the denial of carry forward of long-term capital loss incurred by the assessee during the year under consideration.
The brief facts of the case are that the assessee is a Foreign Portfolio Investor and is a tax resident in Mauritius. For the year under consideration, the assessee filed its return of income on 20.10.2022, declaring a total income of ₹ 5,08,66,850/- and claimed the carry forward of long-term capital loss of ₹ 17,96,11,996/-. The return filed by the assessee was processed vide intimation dated 03.11.2022 issued under section 143(1) of the Act, whereby the long-term capital loss claimed to be carried forward by the assessee in its return of income was not allowed. The AO-CPC also adjusted the dividend income of ₹ 5,08,66,853/- declared by the assessee under the head “income from other sources” against the long-term capital loss of ₹ 17,96,11,996/-.
The learned CIT(A), vide impugned order, rejected the contention of the assessee that AO-CPC is not permitted to disallow the carry forward of long- term capital loss on the basis that the assessee, on one hand, claimed long- term capital gains as exempt under the provisions of the India-Mauritius Double Taxation Avoidance Agreement (“DTAA”), while on the other hand, the long-term capital loss was claimed as per the provisions of the Act. Therefore, the learned CIT(A) held that since the adjustment as required under the Act was not done, the same has resulted in arithmetical error as well as an incorrect claim, which falls within the purview of adjustment under section 143(1) of the Act. Further, on merits, the learned CIT(A) held that the choice of Act or the Treaty provisions is qua the stream of income and since, in the present case, both long-term capital gains as well as the long-term capital loss arose from the same stream of income, therefore carry forward of long- term capital loss is not permissible under the Act. Being aggrieved, the assessee is in appeal before us.
We have considered the submission of both sides and perused the material available on record. During the year under consideration, the assessee earned long-term capital gain of ₹ 38,60,93,938/- from the sale of shares, which were acquired before 01.04.2017 (grandfathered sale), and the same was claimed as not taxable as per the provisions of Article 13(4) of the India-Mauritius DTAA. It is discernible from the record that the said exemption claimed under the provisions of the India-Mauritius DTAA was accepted by the Revenue. Further, during the year under consideration, the assessee incurred net long-term capital loss from the sale of shares which were acquired after 01.04.2017 (non-grandfathered sale), the details of which are as follows:- Particulars Amount (Rs.) Total Long Term Capital Loss on sale of (24,70,12,291) shares Total Long Term Capital Gain on sale of 6,74,00,297/- shares Net Taxable Income (7,96,11,994)
The said long-term capital loss of ₹ 17,96,11,994/- was carried forward by the assessee to the subsequent years as per the provisions of section 74 of the Act. Further, from the perusal of the return of income filed by the assessee on 20.10.2022, forming part of the record, we find that the assessee also declared dividend income of ₹ 5,08,66,853/- as income under the head “income from other sources”. The AO-CPC, without altering the claim of exemption claimed as per the provisions of India-Mauritius DTAA, disagreed with the claim of carry forward of long-term capital loss of ₹ 17,96,11,996/-. Further, the AO-CPC vide intimation issued under section 143(1) of the Act also adjusted the dividend income declared under the head “income from other sources” against the long-term capital loss of ₹ 17,96,11,996/- incurred by the assessee.
During the hearing, the learned Authorised Representative (“learned AR”) by referring to the provisions of section 74 of the Act submitted that long term capital loss incurred by the assessee can be set off only against the long- term capital gains earned by the assessee during the year and if the loss cannot be wholly so set off, then the amount of loss not so set off shall be carried forward to the eight subsequent years. Accordingly, the learned AR submitted that since in respect of shares purchased by the assessee after 01.04.2017, the assessee earned long-term capital gains of ₹ 6,74,00,279/-, the same was set off against the long-term capital loss of ₹ 24,70,12,291/- incurred from the sale of shares purchased after 01.04.2017. Accordingly, the net long-term capital loss of ₹ 17,96,11,984/- was carried forward to the subsequent years by the assessee as per the provisions of section 74 of the Act. The learned AR further submitted that the AO-CPC erred in adjusting the dividend income declared under the head “income from other sources” against the long-term capital loss carried forward by the assessee. The learned AR referred to various decisions of the Coordinate Bench of the Tribunal, wherein it has been held that the long-term capital gains earned from the transactions, which are grandfathered as per the provisions of Article 13(4) of the India- Mauritius DTAA cannot be adjusted against the long-term capital loss incurred by the assessee from the transactions which are arising from non- grandfathered sale. We, at the outset, find that since the long-term capital gains earned by the assessee in the present case, from the transactions which are grandfathered as per the provisions of Article 13(4) of India-Mauritius DTAA, have already been accepted for exemption under the provisions of the Treaty, therefore the present case stands at a different footing on facts.
Further, as regards the findings of the learned CIT(A) that the choice of Act or Treaty provision is qua the stream of income and therefore the claim of exemption in respect of long-term capital gains under DTAA and carry forward of long-term capital loss by referring to the provisions of the Act is not permissible as per law, the learned AR by referring to the decision of a Special Bench of the Tribunal in JCIT vs. Montgomery Emerging Marketing Funds, reported in (2006) 100 ITD 217 (Mumbai) (SB), submitted that different transactions will result in different source of income and therefore each transaction resulting in short-term capital gains or loss and long-term capital gains or loss should be viewed separately and thus, the assessee has a choice to seek the benefit of the Act and Treaty for each source of transaction as per the provisions of section 90(2) of the Act. The relevant findings of the Special Bench of the Tribunal in Montgomery Emerging Marketing Funds (supra), as placed reliance by the learned AR, are reproduced as follows: - "44. Therefore, it is very apparent that source of income does not mean head of income. The Assessing Officer has proceeded on a hypothesis as if the source of income is the head of income itself. This is not a proper construction of law provided in section 70. Short term capital gains/loss as well as long term capital gains/loss both are computed under the head "capital gains" for the aggregation of income culminating into total income which is taxable under the Income-tax Act. What is taxed by the Income-tax Act is not different sources of income independently, but income from different sources clubbed under respective heads and finally aggregated into the total income. The classification of income under different heads for computing the total income does not interfere with the independent character of different sources of income available to an assessee. Both, short term capital gains/loss and long term capital gains/loss are different sources of income, falling under the same head "capital gains". Even under short term capital gains, different transactions will be different sources of income resulting in short term capital gains/loss. Likewise, different transactions of long term capital assets will be different sources of income for an assessee to arrive at long term capital gains/loss. This is reflected in the scheme of computation of capital gains provided in section 48 where gains or loss is computed on the basis of individual asset and transaction and not on the basis of class of assets. Therefore, we have to agree with the argument of the learned senior counsel that every transaction of a property is a different source of income for the assessee. Head of income is not the source of income. Source of income is having the direct nexus with the stream or fountain out of which the income springs to the assessee. Head of income is provided for clubbing purpose of those like minded incomes derived from different sources for the purpose of aggregation and allowable deductions.”
We find that the learned CIT(A) relied upon the decision of the Coordinate Bench of the Tribunal in Indium IV (Mauritius) Holdings Ltd. V. DCIT - [2023] 155 taxmann.com 336 (Mumbai-Trib.) and are observed as follows: - “6.5 Without prejudice of the above, even on merits, the claims of the appellant are not correct. The legal decisions cited by the appellant have been also rendered on different facts. The Ld. AR was informed that even on merits of the case, the claim of the appellant is not as per the recent decision of jurisdictional Mumbai Hon'ble ITAT in the case of Indium IV (Mauritius) Holdings Ltd. V. DCIT - [2023] 155 taxmann.com 336 (Mumbai-Tribunal). Vide the above decision, Hon'ble Tribunal held that with regard to Choice of Act or Treaty Provisions is qua stream of Income, in terms of section 90(2), the assessee is eligible to apply the provisions of the Act or the Treaty, whichever is more beneficial to it. As per Article 13 of the India-Mauritius Treaty, gains derived by a resident of Mauritius from the alienation of shares shall be taxable only in Mauritius. Hon'ble ITAT pointed out that it is observed that the classification of capital assets between long-term and short-term is determined depending on the holding period. Further, taxation of Short Term Capital Gain (STCG) and Long Term Capital Gain (LTCG) is also governed under different sections being 111A in case of STCG and 112/112A in respect of LTCG. Accordingly, the scheme of the Act itself recognizes STCG/STCL and LTCG/LTCL to be separate and distinct sources of Income. This distinction is highlighted upon perusal of section 70 governing intra-head set-off of current- year losses. Section 70 clarifies that the STCL can be carried forward or adjusted intra-head while the LTCL can be carried forward, but intra-head adjustment cannot be made against the STCL/STCG Therefore, Hon'ble ITAT pointed out that the Legislature has kept this difference in carry forward and intra-head adjustment separate for LTCG/LTCL and STCG/STCL. On further perusal of section 70 to section 74, it can be seen that the Legislature has recognized LTCG/LTCL and STCG/STCL as two distinct sources owing to computational dissimilarities. Accordingly, in the said case it was decided that the assessee, under the provisions of section 90(2), is eligible to claim the beneficial provisions of the Treaty in respect of STCG and with regard to LTCL, the assessee has the option to apply the provisions of section 74, accordingly chose to carry forward LTCL. The Cases Reviewed/ considered by Hon'ble ITAT in this case were IBM World Trade Corpn. v. DDIT (IT) [2012] 20 taxmann.com 728 (Bangalore) (para 22); DIT (IT) v. IBM World Trade Corporation [2021] 436 ITR 641 (Karnataka) (para 22); Dimension Data Asia Pacific Pte. Ltd. v. DCIT (IT) [2018] 99 taxmann.com 270 (Mumbai) (para 22); JCIT v. Montgomery Emerging Markets Fund [2006] 100 ITD 217 (Mumbai) (SB) (para 22) - followed. Therefore, in this case, the assessee was allowed to claim
beneficial provisions of the India-Mauritius DTAA in respect of STCG and carry forward the LTCL as per section 74 of the Act by Hon'ble ITAT. It is noted that this decision is squarely applicable to the facts of the instant case and this decision was also discussed with the Ld. counsel of the appellant. It was pointed out to the Ld. Counsel of the appellant that the Hon'ble Tribunal has held that with regard to Choice of Act or Treaty Provisions is qua stream of Income. Hon'ble ITAT pointed out that the Legislature has kept this difference in carry forward and intra-head adjustment separate for LTCG/LTCL and STCG/STCL and pointed out that as per section 70 to section 74, it can be seen that the Legislature has recognized LTCG/LTCL and STCG/STCL as two distinct sources owing to computational dissimilarities. In the instant case, the appellant has sought to claim Long term capital gains as exempt under the DTAA, but for the same source of income being Long term capital loss, it has sought to carry it forward by referring to the provisions of the Income Tax Act, which is not permissible as per law and also as per the above order of jurisdictional Hon’ble ITAT, Mumbai as discussed above.”
However, from the perusal of the decision of the Coordinate Bench of the Tribunal in Indium IV Mauritius Holdings Ltd. (supra), as placed reliance upon by the learned CIT(A), we find that the Coordinate Bench held that gains/loss arising from different transactions are distinct transactions and a separate source of income and therefore short-term capital gains/loss and long-term capital gains/loss are distinct and separate streams of income arising to an assessee and section 90(2) of the Act will apply to each source of income. Further, the Coordinate Bench held that under the head “capital gains”, the short-term and long-term assets are different sources of income, but each transaction constituting the short-term and long-term assets is a different source of income. The relevant findings of the Coordinate Bench, in the aforesaid decision, are reproduced as follows: - “18. From the above provisions, it is clear that the short term capital loss can be carried forward or adjusted intra head but the long term capital loss can be carried forward or intra head adjusted cannot be made against the short term capital loss or gain. Therefore, the legislature has kept this difference in carry forward as well as intra head adjustment separate for LTCG/LTCL and STCG/STCL. On further perusal of Section 70 to Section 74, it can be seen that the Legislature itself has recognized LTCG/LTCL and STCG/STCL to be two distinct sources owing to computational dissimilarities. Accordingly, the Assessee, by virtue of the provisions of section 90(2) of the Act is eligible to claim the beneficial provisions of the Treaty in respect of STCG and with regard to LTCL, the assessee has only option to apply the provisions of section 74 of the Act, accordingly chose to carry forward LTCL.
In this regard, for the proposition that a taxpayer is able to choose the provisions of the Act or those of the Treaty for different sources of income, reliance is placed on decision of Bangalore ITAT in case of IBM World Trade Corpn. v. Dy. DIT (IT) [2012] 20 taxmann.com 728/54 SOT 39 (URO). In this case, it is held that in case of multiple sources of income an Assessee is entitled to adopt provisions of the Act for one source of Income while applying the provisions of DTAA for the other source. "The assessee has invoked the benefit of the Treaty only in respect of royalty income arising from the agreements entered into before 1-6-2005. In respect of agreements entered into on or after 1-6-2005, the assessee has offered royalty income at the rate of 10 per cent as per the provision of section 115JA. The concerned contracts are different: the source of income is different; and the provisions under which royalty income is taxable, are different and the assessee was, therefore justified in offering the royalty income arising under two different contracts at two rates - one under the Act and one under the Treaty, [Para 7.6] 20. The aforementioned decision in case of IBM World Trade Corpn. (supra) has been upheld by the Hon'ble Karnataka High Court in the case of DIT (IT) v. IBM World Trade Corpn. [2020] 120 taxmann.com 151/[2021] 276 Taxman 211/436 ITR 641 ITR 641. The above decision was relied by the coordinate bench in the case of Dimension Data Asia Pacific Pte. Ltd. v. Dy. CIT (IT) [2018] 99 taxmann.com 270 (Mum.) wherein placing reliance on the decision of Hon'ble Karnataka High Court in case of IBM World Trade Corpn. (supra), the ITAT has held as under: — ". ….are of the view that as per Section 90(2), the assessee is entitled to claim benefits of the Double Tax Avoidance Agreement to the extent the same are more "beneficial" as compared to the provisions of the Act. While doing so, in cases of multiple sources of income, an assessee is entitled to adopt the provisions of the Act for one source while applying the provisions of the DTA for the other....."
Further, the Special Bench of the Mumbai ITAT in case of Montgomery Emerging Markets Fund (supra) has held that long term capital gains and short term capital gains are separate sources of income and merely because these are clubbed under the same head of income, their identity as separate sources does not get obliterated. The relevant extract is reproduced below: "44. Therefore, it is very apparent that source of income does not mean head of income. The Assessing Officer had proceeded on a hypothesis as if the source of income is the head of income itself. This is not a proper construction of law provided in section 70 Short-term capital gains/loss as well as long-term Capital gains/loss both are computed under the head capital gains for the aggregation of income culminating into total income which is taxable under the Income-tax Act. What is taxed by the Income-tax Act is not different sources of income independently, but income from different sources clubbed under respective heads and finally aggregated into the total income. The classification of income under different heads for computing the total income does not interfere with the independent character of different sources of income available to an assessee. Both, short-term capital gains/loss and long-term Capital gains/oss are different sources of income, falling under the same head 'Capital gains…………………."
Therefore, it is clear that source of income has a direct nexus with the stream out of which the income springs to the assessee. The heads of income are provided to aggregate similar incomes derived from different sources for deduction and taxation purposes. In the head of income "Capital Gains", the short-term and long-term assets are different sources of income, but each transaction constituting the short- term and long-term assets are different sources of income. Accordingly, gains/losses arising from different transactions are distinct transactions and a separate source of income; accordingly, STCG/STCL and LTCG/LTCL are distinct and separate streams of income arising to an assessee. Section 90(2) of the Act provides the provisions of the Act or the provisions of the Treaty, whichever are beneficial, shall apply to the assessee. As held by the Bangalore ITAT and affirmed by the Hon'ble Karnataka High Court in case of IBM World Trade Corpn. (supra), the provisions of section 90(2) of the Act will apply to each stream of income and not the head of income. Respectfully, following the decisions in case of IBM World Trade Corpn. (supra), Dimension Data Asia Pacific Pte. Ltd. (supra) and Montgomery Emerging Markets Fund (supra), the Assessee has claimed beneficial provisions of the India - Mauritius DTAA in respect of STCG and allowed to carry forward the LTCL as per section 74 of the Act.”
Therefore, from the perusal of the aforesaid decision, we are of the considered view that the same, in fact, supports the case of the assessee and further substantiates its claim that the choice of Act or Treaty is qua the separate source of income and each transaction resulting in gain or loss is a distinct source of income. In the present case, it cannot be disputed that the benefit of the Treaty was claimed by the assessee in respect of gains arising from the sale of shares which were acquired prior to 01.04.2017. However, the assessee claimed carry forward of long-term capital loss from the sale of shares which were acquired after 01.04.2017. Therefore, in the present case, it is quite apparent that both transactions are distinct and, hence, result in different sources of income. Accordingly, we are of the considered view that the reliance placed by the learned CIT(A) on the decision of the Coordinate Bench of the Tribunal in Indium IV Mauritius Holdings Ltd. (supra) to decide the issue on merits against the assessee is wholly misplaced.
Before concluding, we may note the well-settled principle of International Tax Jurisprudence that the Treaty does not levy any tax on the assessee, and only in a case wherein income is taxable under the Act, the Treaty may provide benefit to the assessee by exempting the income from taxability either by applying the resident rule of taxation or the source rule of taxation, as the case may be. Insofar as the gains arising from the sale of shares which were acquired prior to 01.04.2017, Article 13(4) of the India- Mauritius DTAA, applying the resident rule of taxation, provides that such gains shall only be taxable in Mauritius. However, in respect of shares acquired after 01.04.2017, Article 13(3A) of India-Mauritius DTAA, applying the source rule of taxation, provides that such gains will be taxable in the contracting state in which the company, whose shares are sold, is resident. Accordingly, in the present case, the gains from the sale of shares acquired prior to 01.04.2017, which would otherwise have been taxable under the provisions of the Act, by application of the provisions of Article 13(4) of the India- Mauritius DTAA, became exempt from taxation in India. However, in respect of the transaction of sale of shares acquired after 01.04.2017, though it was taxable in India, even as per Article 13(3A) of India-Mauritius DTAA, the assessee incurred net long-term capital loss in any case. Such being the facts, by applicability of the provisions of the Act, particularly section 74 as noted in the following paragraph, we are of the considered view that the assessee is entitled to claim carry forward of the long-term capital loss to subsequent years. Further, as noted above, such long-term capital loss can only be set off against the long-term capital gains. Therefore, the dividend income declared as taxable under the head “income from other sources” cannot be adjusted against the long-term capital loss carried forward by the assessee. Accordingly, the AO is directed to allow the carry forward of long-term capital loss of ₹ 17,96,11,994/- to subsequent years as per the provisions of section 74 of the Act. Accordingly, Grounds no.1 to 4 raised in assessee’s appeal are allowed.
In view of the aforesaid findings, Ground no.5 raised in assessee’s appeal needs no separate adjudication.
In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 28/08/2025