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DCIT (IT) - 4(1)(1), MUMBAI, MUMBAI vs ROBECO INSTITUTIONEEL EMERGING MARKETS FONDS , MUMBAI | BharatTax

DCIT (IT) - 4(1)(1), MUMBAI, MUMBAI vs. ROBECO INSTITUTIONEEL EMERGING MARKETS FONDS , MUMBAI

ITA 4059/MUM/2024Status: DisposedITAT Mumbai29 January 2025AY 2016-17Bench: SHRI OM PRAKASH KANT (Accountant Member), SHRI SUNIL KUMAR SINGH ( (Judicial Member)1 pages

AI SummaryAllowed

Facts

The assessee, a tax resident of Netherlands and an FPI, engaged in securities trading, claimed exemption for capital gains under the India-Netherlands DTAA and sought to carry forward brought-forward losses. The Assessing Officer (AO) sought to adjust these losses against current year capital gains before allowing treaty benefits, thereby reducing the carried-forward loss amount. The CIT(A) rejected the AO's approach.

Held

The Tribunal held that once capital gains are exempt under the DTAA, there is no occasion to adjust brought-forward capital losses against such exempt gains. The assessee is entitled to carry forward the full amount of brought-forward losses to subsequent years as per law.

Key Issues

Whether brought forward capital losses can be adjusted against exempt capital gains under a DTAA before carry forward, or if losses must be carried forward in full irrespective of the exemption.

Sections Cited

10(38), 74, 143(1)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “I” MUMBAI

Before: SHRI OM PRAKASH KANT & SHRI SUNIL KUMAR SINGH

For Appellant: Mr. Krishna Kumar, Sr. DR

Hearing: 23/01/2025

The captioned appeals by the Revenue are directed against The captioned appeals by the Revenue are directed against The captioned appeals by the Revenue are directed against orders, both dated 20.06.2024 passed by the Ld. Commissioner of orders, both dated 20.06.2024 passed by the Ld. Commissioner of orders, both dated 20.06.2024 passed by the Ld. Commissioner of Income-tax (Appeals) tax (Appeals) – 58, Mumbai [in short ‘the Ld. CIT(A)’] for 58, Mumbai [in short ‘the Ld. CIT(A)’] for assessment years 2016 assessment years 2016-17 and 2021-22 respectively. As identical 22 respectively. As identical grounds have been raised in both the appeals grounds have been raised in both the appeals, therefore, same were therefore, same were heard together and disposed off by way of this consolidated order heard together and disposed off by way of this consolidated order heard together and disposed off by way of this consolidated order for the sake of convenience. for the sake of convenience.

2.

The grounds raised by the The grounds raised by the assessee in assessment year 2016 assessee in assessment year 2016- 17 are reproduced as under: 17 are reproduced as under:

1. Whether on the facts & circumstances of the case, Ld. CIT(A) has 1. Whether on the facts & circumstances of the case, Ld. CIT(A) has 1. Whether on the facts & circumstances of the case, Ld. CIT(A) has erred in holding that once the capital gains are considered as erred in holding that once the capital gains are considered as erred in holding that once the capital gains are considered as exempt under India Netherlands DTAA, there would not be any exempt under India Netherlands DTAA, there would not be any exempt under India Netherlands DTAA, there would not be any occasion for seeking adjustment of brought forward capital loss occasion for seeking adjustment of brought forward capital loss occasion for seeking adjustment of brought forward capital loss against such exempt capital gains. against such exempt capital gains.

3. We have heard rival submissions of the parties and perused We have heard rival submissions of the parties and perused We have heard rival submissions of the parties and perused the relevant materials on record the relevant materials on record. The assessee is a registered . The assessee is a registered foreign portfolio investor (FPI) registered with the Security and foreign portfolio investor (FPI) registered with the Security and foreign portfolio investor (FPI) registered with the Security and Exchange Board of Ind Exchange Board of India (SEBI). The assessee is a tax resident of ia (SEBI). The assessee is a tax resident of Netherlands as per Article India Netherland Double Taxation Netherlands as per Article India Netherland Double Taxation Netherlands as per Article India Netherland Double Taxation Avoidance Agreement (DTAA). During the year under consideration, Avoidance Agreement (DTAA). During the year under consideration, Avoidance Agreement (DTAA). During the year under consideration, the assessee was engaged in purchase and sale of the securities. the assessee was engaged in purchase and sale of the securities. the assessee was engaged in purchase and sale of the securities. The assessee has show The assessee has shown income under the head ‘capital gains and n income under the head ‘capital gains and other sources’. For the year under consideration, the assessee filed other sources’. For the year under consideration, the assessee filed other sources’. For the year under consideration, the assessee filed return of income on 27.12.2021 declaring total income at Rs. Nil. In return of income on 27.12.2021 declaring total income at Rs. Nil. In return of income on 27.12.2021 declaring total income at Rs. Nil. In the return of income filed, the assessee has shown short term the return of income filed, the assessee has shown short term the return of income filed, the assessee has shown short term capital gain earned on transfer of equity shares amounting to earned on transfer of equity shares amounting to earned on transfer of equity shares amounting to Rs.1,65,42,777/- which is claimed as exempt under Article 13(5) which is claimed as exempt under Article 13(5) which is claimed as exempt under Article 13(5) India-Netherland DTAA. The assessee also earned net long term Netherland DTAA. The assessee also earned net long term Netherland DTAA. The assessee also earned net long term capital gain from transfer of equi capital gain from transfer of equity shares amounting to ty shares amounting to Rs.2,38,79,450/- and and claimed as exempt under Article 13(5) of imed as exempt under Article 13(5) of India-Netherland DTAA. The assessee also Netherland DTAA. The assessee also earned income from earned income from long

Assessment Years Assessment Years Short term capital loss brought forward (INR) Short term capital loss brought forward (INR) A.Y.2011-12 4,86,45,424 A.Y.2012-13 75,17,581 A.Y.2013-14 82,82,795 A.Y.2014-15 3,00,64,911 A.Y.2015-16 33,79,91,711 3.1 During the year under consideration, the assessee claimed During the year under consideration, the assessee claimed During the year under consideration, the assessee claimed carry forward of the short term capital and long term capital loss. carry forward of the short term capital and long term capital loss. carry forward of the short term capital and long term capital loss. The return of income filed by the assessee was selected for scrutiny The return of income filed by the assessee was selected for scrutiny The return of income filed by the assessee was selected for scrutiny assessment and statutory notices under the Income-tax Act, 1961 assessment and statutory notices under the Income assessment and statutory notices under the Income (in short ‘the Act’) were issued and complied with. In the (in short ‘the Act’) were issued and complied with. In the (in short ‘the Act’) were issued and complied with. In the assessment, the Assessing Officer held that brought forward capital assessment, the Assessing Officer held that brought forward assessment, the Assessing Officer held that brought forward losses was to be adjusted against the current year capital gain losses was to be adjusted against the current year losses was to be adjusted against the current year under consideration and the remaining under consideration and the remaining capital gains would Nil gains would Nil be eligible for treaty benefits. Accordingly, the Assessing Officer eligible for treaty benefits. Accordingly, the Assessing Officer eligible for treaty benefits. Accordingly, the Assessing Officer adjusted the carried forward short term capital losses against the adjusted the carried forward short term capital losses against the adjusted the carried forward short term capital losses against the short term and long term capital gain earned during the year under short term and long term capital gain earned during the year under short term and long term capital gain earned during the year under consideration.

6.1 The assessee has filed its return of income for A.Y.2016 6.1 The assessee has filed its return of income for A.Y.2016 6.1 The assessee has filed its return of income for A.Y.2016-17 on 26.07.2016 declaring income of Nil. The assessee is tax resident of 26.07.2016 declaring income of Nil. The assessee is tax resident of 26.07.2016 declaring income of Nil. The assessee is tax resident of Netherlands and it is registered with SEBI as forei Netherlands and it is registered with SEBI as forei Netherlands and it is registered with SEBI as foreign portfolio investor. During the year under consideration, the assessee has investor. During the year under consideration, the assessee has investor. During the year under consideration, the assessee has earned short term capital gain of Rs.1,60,63,007/ earned short term capital gain of Rs.1,60,63,007/- and has claimed and has claimed exemption under Article 13 of India exemption under Article 13 of India-Netherland DTAA. The Netherland DTAA. The assessee assessee assessee has has has also also also earned earned earned Long Long Long term term term capital capital capital gain gain gain of of of Rs.13,10,67,006/ .13,10,67,006/- which is claimed as exempt u/s.10(38) of the IT which is claimed as exempt u/s.10(38) of the IT Act. Further, the assessee has claimed brought forward short Act. Further, the assessee has claimed brought forward short Act. Further, the assessee has claimed brought forward short-term capital loss of Rs.43,25,02,482/ capital loss of Rs.43,25,02,482/- to be carried forward to future to be carried forward to future years. The AO in the assessment order has mentioned that th years. The AO in the assessment order has mentioned that th years. The AO in the assessment order has mentioned that the losses for A.Y.2011 losses for A.Y.2011-12 to A.Y.2015-16 brought forward to A.Y.2016 16 brought forward to A.Y.2016- 17 were the same as the losses incurred during A.Y.2011 17 were the same as the losses incurred during A.Y.2011 17 were the same as the losses incurred during A.Y.2011-12 to A.Y.2015-16. The AO further has mentioned that the assessee in 16. The AO further has mentioned that the assessee in 16. The AO further has mentioned that the assessee in A.Y.2016-17 has sought treaty benefit for short term capital ga 17 has sought treaty benefit for short term capital gain 17 has sought treaty benefit for short term capital ga arisen during A.Y.2016 arisen during A.Y.2016-17 and for claiming the carry forward of 17 and for claiming the carry forward of short term brought forward capital loss, the assessee is claiming short term brought forward capital loss, the assessee is claiming short term brought forward capital loss, the assessee is claiming relief under the IT Act. The AO has mentioned that the treaty/act relief under the IT Act. The AO has mentioned that the treaty/act relief under the IT Act. The AO has mentioned that the treaty/act benefit is to be given to the assessee after computing benefit is to be given to the assessee after computing benefit is to be given to the assessee after computing total income as per domestic act. The AO further mentioned that the carry as per domestic act. The AO further mentioned that the carry as per domestic act. The AO further mentioned that the carry forward of carry forward loss is not denied to the assessee and the forward of carry forward loss is not denied to the assessee and the forward of carry forward loss is not denied to the assessee and the assessee was only allowed to carry forward, recomputed brought assessee was only allowed to carry forward, recomputed brought assessee was only allowed to carry forward, recomputed brought forward losses after taking into account set off forward losses after taking into account set off for the short for the short-term capital gains earned during A.Y.2016 capital gains earned during A.Y.2016-17. The AO has rejected case 17. The AO has rejected case laws submitted by the assessee and he has allowed total loss of laws submitted by the assessee and he has allowed total loss of laws submitted by the assessee and he has allowed total loss of Rs.41,64,39,475/ Rs.41,64,39,475/- to be carry forward to A.Y.2017-18 as against 18 as against carry forward loss of Rs.43,25,02,482/ carry forward loss of Rs.43,25,02,482/- as claimed by the as claimed by the assessee HAS assessee HAS 6.2 During the course of appellate proceedings, the assessee has 6.2 During the course of appellate proceedings, the assessee has 6.2 During the course of appellate proceedings, the assessee has relied on the judgment of Hon’ble ITAT Mumbai in the case of relied on the judgment of Hon’ble ITAT Mumbai in the case of relied on the judgment of Hon’ble ITAT Mumbai in the case of Flagship Indian Investment Co. (Mauritius) Ltd. vs. Assistant Flagship Indian Investment Co. (Mauritius) Ltd. vs. Assistant Flagship Indian Investment Co. (Mauritius) Ltd. vs. Assistant Director of Income Tax [2010] 38 Director of Income Tax [2010] 38 SOT 426 (Mum) in which it was SOT 426 (Mum) in which it was Robeco Institutioneel Emerging Robeco Institutioneel Emerging 6 Markets Fonds & Robeco Q1 Markets Fonds & Institutional Emerging Markets Institutional Emerging Markets Enhanced Index Equities Fund Enhanced Index Equities Fund 4058/MUM/2024 held that the assessee was fully justified in claiming carried held that the assessee was fully justified in claiming carried held that the assessee was fully justified in claiming carried forward of brought forward losses of earlier years to subsequent forward of brought forward losses of earlier years to subsequent forward of brought forward losses of earlier years to subsequent year and, therefore, lower authorities had erred in disallowing its year and, therefore, lower authorities had erred in disallowing its year and, therefore, lower authorities had erred in disallowing its claim. Relevant portion of claim. Relevant portion of the order of the ITAT is reproduced as the order of the ITAT is reproduced as under- “6. We have carefully considered the submissions of the rival “6. We have carefully considered the submissions of the rival “6. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that parties and perused the material available on record. We find that parties and perused the material available on record. We find that the facts are not in dispute inasmuch as there is no dispute that the the facts are not in dispute inasmuch as there is no dispute that the the facts are not in dispute inasmuch as there is no dispute that the assessee is a non ee is a non- resident company and not subjected to tax on resident company and not subjected to tax on capital gains in this year in India. It is also not in dispute that the capital gains in this year in India. It is also not in dispute that the capital gains in this year in India. It is also not in dispute that the assessee has shown capital losses amounting to Rs.87,06,49,335/ assessee has shown capital losses amounting to Rs.87,06,49,335/ assessee has shown capital losses amounting to Rs.87,06,49,335/- in the return for the Assessment Year 2002 in the return for the Assessment Year 2002-03 and has claim 03 and has claimed the same to be carried forward to the subsequent Assessment Years. same to be carried forward to the subsequent Assessment Years. same to be carried forward to the subsequent Assessment Years. However, it was denied by the AO on the ground that the entire However, it was denied by the AO on the ground that the entire However, it was denied by the AO on the ground that the entire capital gains earned by the assessee was exempt from tax under capital gains earned by the assessee was exempt from tax under capital gains earned by the assessee was exempt from tax under the Treaty, hence, the assessee is not entitled to have th the Treaty, hence, the assessee is not entitled to have th the Treaty, hence, the assessee is not entitled to have the benefit of carry forward of brought forward losses of earlier years. On appeal, carry forward of brought forward losses of earlier years. On appeal, carry forward of brought forward losses of earlier years. On appeal, the ld. CIT(A) upheld the view of the AO . Section 72 of the Act the ld. CIT(A) upheld the view of the AO . Section 72 of the Act the ld. CIT(A) upheld the view of the AO . Section 72 of the Act deals with the provisions for carry forward and set off of business deals with the provisions for carry forward and set off of business deals with the provisions for carry forward and set off of business losses. Sec.157 of the Act provides th losses. Sec.157 of the Act provides that when, in the course of the at "when, in the course of the assessment of the total income of any assessee, it is established assessment of the total income of any assessee, it is established assessment of the total income of any assessee, it is established that a loss of profits or gains has taken place which he is entitled to that a loss of profits or gains has taken place which he is entitled to that a loss of profits or gains has taken place which he is entitled to have set off under provisions of this section, the AO shall notify to have set off under provisions of this section, the AO shall notify to have set off under provisions of this section, the AO shall notify to the assessee b the assessee by order in writing the amount of loss as computed by y order in writing the amount of loss as computed by him for the purposes of this section". In the case before us the him for the purposes of this section". In the case before us the him for the purposes of this section". In the case before us the amount of brought forward loss of A.Y:05 amount of brought forward loss of A.Y:05-06 Rs.87,06,49,335/ 06 Rs.87,06,49,335/- to be carried forward for subsequent years is not in dispute as per be carried forward for subsequent years is not in dispute as per be carried forward for subsequent years is not in dispute as per intimation u/s. 143(1) of the Act for the Assessment Year 2002 ation u/s. 143(1) of the Act for the Assessment Year 2002-03. ation u/s. 143(1) of the Act for the Assessment Year 2002 The only dispute is as to whether the set off can be considered or The only dispute is as to whether the set off can be considered or The only dispute is as to whether the set off can be considered or deemed to have been considered in the year under consideration or deemed to have been considered in the year under consideration or deemed to have been considered in the year under consideration or it may be allowed to be carried forward to the subsequent it may be allowed to be carried forward to the subsequent it may be allowed to be carried forward to the subsequent Assessment Years. Assessment Years.

7.

In CIT vs. Mohan Das (1966) 59 ITR 699 the Hon'ble Supreme 7. In CIT vs. Mohan Das (1966) 59 ITR 699 the Hon'ble Supreme 7. In CIT vs. Mohan Das (1966) 59 ITR 699 the Hon'ble Supreme Court has held (page 700 headnotes) as under : "(iv) That the Court has held (page 700 headnotes) as under : "(iv) That the Court has held (page 700 headnotes) as under : "(iv) That the assessee was following a vocation and his remuneration had to be assessee was following a vocation and his remuneration had to be assessee was following a vocation and his remuneration had to be computed under section 10 and the loss of pr computed under section 10 and the loss of profits suffered in that ofits suffered in that Robeco Institutioneel Emerging Robeco Institutioneel Emerging 7 Markets Fonds & Robeco Q1 Markets Fonds & Institutional Emerging Markets Institutional Emerging Markets Enhanced Index Equities Fund Enhanced Index Equities Fund 4058/MUM/2024 vocation in any year could be carried forward to the next year to be vocation in any year could be carried forward to the next year to be vocation in any year could be carried forward to the next year to be set off against the profits of the succeeding year. Whether the loss set off against the profits of the succeeding year. Whether the loss set off against the profits of the succeeding year. Whether the loss in any year may be carried forward to the following year and set off in any year may be carried forward to the following year and set off in any year may be carried forward to the following year and set off against the profits and against the profits and gains of the subsequent year under section gains of the subsequent year under section 24(2) has to be determined by the Income tax officer who deals 24(2) has to be determined by the Income tax officer who deals 24(2) has to be determined by the Income tax officer who deals with the assessment of the subsequent year. A decision recorded with the assessment of the subsequent year. A decision recorded with the assessment of the subsequent year. A decision recorded by the income tax Officer who computes the loss in the previous by the income tax Officer who computes the loss in the previous by the income tax Officer who computes the loss in the previous year that the loss year that the loss cannot be set off against the income of the cannot be set off against the income of the subsequent year is not binding on the assessee". subsequent year is not binding on the assessee".

8.

In CIT vs. Western India Oil Distributing Co. Ltd. (2001) 249 ITR 8. In CIT vs. Western India Oil Distributing Co. Ltd. (2001) 249 ITR 8. In CIT vs. Western India Oil Distributing Co. Ltd. (2001) 249 ITR 517(SC) Their Lordships following the decision in CIT vs. Mohan 517(SC) Their Lordships following the decision in CIT vs. Mohan 517(SC) Their Lordships following the decision in CIT vs. Mohan Das (supra), have observed and held as under (page 517 Das (supra), have observed and held as under (page 517 Das (supra), have observed and held as under (page 517 headnotes): "From the decision of the High Court (see [1980] 126 headnotes): "From the decision of the High Court (see [1980] 126 headnotes): "From the decision of the High Court (see [1980] 126 ITR 498) that, since the Tribunal had found that the income of the ITR 498) that, since the Tribunal had found that the income of the ITR 498) that, since the Tribunal had found that the income of the assessee was assessable under section 10 of the Indian Income assessee was assessable under section 10 of the Indian Income assessee was assessable under section 10 of the Indian Income- tax Act, 1922, for the assessment years 1943 tax Act, 1922, for the assessment years 1943-44 to 1953 44 to 1953-54, but for the assessment year 1954 for the assessment year 1954-55, the assessee had secured a 55, the assessee had secured a pecuniary advantage by reason of its income being assessed under pecuniary advantage by reason of its income being assessed under pecuniary advantage by reason of its income being assessed under the head "Income from other sources", and for that reason benefit of the head "Income from other sources", and for that reason benefit of the head "Income from other sources", and for that reason benefit of carry forward was denied to the assessee, while retaining that carry forward was denied to the assessee, while retaining that carry forward was denied to the assessee, while retaining that advantage the assessee could not be permitted to reagita advantage the assessee could not be permitted to reagita advantage the assessee could not be permitted to reagitate that question and submit that the income for that year had to be question and submit that the income for that year had to be question and submit that the income for that year had to be reassessed under the correct head "Business" under section 10, reassessed under the correct head "Business" under section 10, reassessed under the correct head "Business" under section 10, and, therefore, the unabsorbed depreciation for the years 1943 and, therefore, the unabsorbed depreciation for the years 1943 and, therefore, the unabsorbed depreciation for the years 1943-44 to 1953- 54 could be allowed to be set off against busin 54 could be allowed to be set off against busin 54 could be allowed to be set off against business income arising in the assessment years 1959 arising in the assessment years 1959-60 to 1962- 63, but not that 63, but not that relating to the assessment year 1954 relating to the assessment year 1954-55, the Department preferred 55, the Department preferred appeals to the Supreme Court. The Supreme Court dismissed the appeals to the Supreme Court. The Supreme Court dismissed the appeals to the Supreme Court. The Supreme Court dismissed the appeals affirming the decision of the High Court appeals affirming the decision of the High Court appeals affirming the decision of the High Court that if the quantification of loss is properly and duly notified by following the quantification of loss is properly and duly notified by following the quantification of loss is properly and duly notified by following the prescribed procedure, such quantification may be impressed with prescribed procedure, such quantification may be impressed with prescribed procedure, such quantification may be impressed with the principle of finality, but the principle of finality did not apply to the principle of finality, but the principle of finality did not apply to the principle of finality, but the principle of finality did not apply to the determination of the source the determination of the source of income and to a decision whether of income and to a decision whether the loss can or cannot be allowed to be carried forward by reason the loss can or cannot be allowed to be carried forward by reason the loss can or cannot be allowed to be carried forward by reason of the determination of the source." of the determination of the source."

9.

The CBDT has also clarified the stand taken by the revenue vide 9. The CBDT has also clarified the stand taken by the revenue vide 9. The CBDT has also clarified the stand taken by the revenue vide Circular No.22 of 1944 dated 29.7.1944, para Circular No.22 of 1944 dated 29.7.1944, para-2 (page 1408 of (page 1408 of Direct Tax Circular Income tax by Chaturvedi & Pithisaria's Income Direct Tax Circular Income tax by Chaturvedi & Pithisaria's Income Direct Tax Circular Income tax by Chaturvedi & Pithisaria's Income tax Law (5th Edition) (10th Vol.)as under : tax Law (5th Edition) (10th Vol.)as under : "Non-resident's Indian loss to be carried forward and not set off resident's Indian loss to be carried forward and not set off resident's Indian loss to be carried forward and not set off against foreign income 'Total income' is defined as the tota against foreign income 'Total income' is defined as the tota against foreign income 'Total income' is defined as the total amount of income, profits and gains referred to in the sub of income, profits and gains referred to in the sub- section(1) of section 4* computed in the manner laid down in the Act. In the case section 4* computed in the manner laid down in the Act. In the case section 4* computed in the manner laid down in the Act. In the case of a non- resident, his foreign income is not included in his 'total resident, his foreign income is not included in his 'total resident, his foreign income is not included in his 'total income' which is to be computed subject income' which is to be computed subject to the provisions of section to the provisions of section 24*. If the 'total income' is a loss, it has to be carried forward 24*. If the 'total income' is a loss, it has to be carried forward 24*. If the 'total income' is a loss, it has to be carried forward subject to the provisions of section 24(2)* and cannot be set off subject to the provisions of section 24(2)* and cannot be set off subject to the provisions of section 24(2)* and cannot be set off against any income which does not form part of the 'total income'. against any income which does not form part of the 'total income'. against any income which does not form part of the 'total income'. Otherwise, a non Otherwise, a non-resident would not get any A.Y:05 would not get any A.Y:05-06 relief in Indian taxation on account of the loss incurred by him in India." (* of Indian taxation on account of the loss incurred by him in India." (* of Indian taxation on account of the loss incurred by him in India." (* of the 1922 Act.) the 1922 Act.) 10. Applying the ratio of the law laid down by the Their Lordships, 10. Applying the ratio of the law laid down by the Their Lordships, 10. Applying the ratio of the law laid down by the Their Lordships, to the facts of the present case and keeping in view the to the facts of the present case and keeping in view the to the facts of the present case and keeping in view the CBDT Circular (supra), we find that it is not the case of the revenue that Circular (supra), we find that it is not the case of the revenue that Circular (supra), we find that it is not the case of the revenue that the assessee has no brought forward losses to be carried forward to the assessee has no brought forward losses to be carried forward to the assessee has no brought forward losses to be carried forward to the subsequent year or the same have already been adjusted. In the subsequent year or the same have already been adjusted. In the subsequent year or the same have already been adjusted. In this view of the matter we are of the view that this view of the matter we are of the view that the assessee was the assessee was fully justified in claiming the carried forward of brought forward fully justified in claiming the carried forward of brought forward fully justified in claiming the carried forward of brought forward losses of the earlier years to the subsequent years and the AO and losses of the earlier years to the subsequent years and the AO and losses of the earlier years to the subsequent years and the AO and the ld. CIT(A) have erred in not allowing the same. The AO is the ld. CIT(A) have erred in not allowing the same. The AO is the ld. CIT(A) have erred in not allowing the same. The AO is directed to allow the carry forward of b directed to allow the carry forward of brought forward loss of rought forward loss of earlier years to the subsequent years according to law. The ground earlier years to the subsequent years according to law. The ground earlier years to the subsequent years according to law. The ground taken by the assessee is, therefore, allowed.” taken by the assessee is, therefore, allowed.” 6.3 Further, the assessee has also relied on decision of Hon’ble 6.3 Further, the assessee has also relied on decision of Hon’ble 6.3 Further, the assessee has also relied on decision of Hon’ble ITAT Mumbai in the case of Swiss Finance Corporat ITAT Mumbai in the case of Swiss Finance Corporation (Mauritius) ion (Mauritius) Limited vs. DCIT (IT) Limited vs. DCIT (IT)-4(2)(2) [2022] and Goldman Sachs Investments 4(2)(2) [2022] and Goldman Sachs Investments (Mauritius) Limited v Deputy Commissioner of Income (Mauritius) Limited v Deputy Commissioner of Income-tax [2020] 120 tax [2020] 120 Taxmann.com 23, ITAT Appeal No. 2201 (Mum) of 2017 wherein the Taxmann.com 23, ITAT Appeal No. 2201 (Mum) of 2017 wherein the Taxmann.com 23, ITAT Appeal No. 2201 (Mum) of 2017 wherein the Hon'ble ITAT placing reliance on Flagshi Hon'ble ITAT placing reliance on Flagship Indian Investment Co. p Indian Investment Co. (Mauritius) Ltd (supra) held that once the capital gains are (Mauritius) Ltd (supra) held that once the capital gains are (Mauritius) Ltd (supra) held that once the capital gains are considered as exempt under the relevant tax treaty, there would not considered as exempt under the relevant tax treaty, there would not considered as exempt under the relevant tax treaty, there would not Robeco Institutioneel Emerging Robeco Institutioneel Emerging 9 Markets Fonds & Robeco Q1 Markets Fonds & Institutional Emerging Markets Institutional Emerging Markets Enhanced Index Equities Fund Enhanced Index Equities Fund 4058/MUM/2024 be any occasion for seeking adjustment of brought forward short be any occasion for seeking adjustment of brought forward short be any occasion for seeking adjustment of brought forward short- term capital loss against such exemp term capital loss against such exempt capital gains. 6.4 In view of the facts of the case and decisions of the 6.4 In view of the facts of the case and decisions of the 6.4 In view of the facts of the case and decisions of the jurisdictional ITAT referred above, the assessee is allowed to carry jurisdictional ITAT referred above, the assessee is allowed to carry jurisdictional ITAT referred above, the assessee is allowed to carry forward loss of Rs. 43,25,02,482/ forward loss of Rs. 43,25,02,482/- as claimed by it to the as claimed by it to the A.Y.2017-18 and thus, grounds of the appeal raise 18 and thus, grounds of the appeal raised by the 18 and thus, grounds of the appeal raise assessee are allowed. Accordingly, grounds of the appeal of the assessee are allowed. Accordingly, grounds of the appeal of the assessee are allowed. Accordingly, grounds of the appeal of the assessee are allowed. assessee are allowed.” 3.3 We have heard rival submissions of the parties and perused We have heard rival submissions of the parties and perused We have heard rival submissions of the parties and perused the relevant materials on record the relevant materials on record. We find that the Ld. CIT(A) has hat the Ld. CIT(A) has followed the binding precedent of the Co the binding precedent of the Co-ordinate Bench of the ordinate Bench of the Tribunal in the case of Swiss Finance Corporate (Mauritius) Ltd. Tribunal in the case of Swiss Finance Corporate (Mauritius) Ltd. Tribunal in the case of Swiss Finance Corporate (Mauritius) Ltd. (supra) and Goldman Sachs Investment (Mauritius) Ltd. (supra) (supra) and Goldman Sachs Investment (Mauritius) Ltd. (supra) (supra) and Goldman Sachs Investment (Mauritius) Ltd. (supra) along with the decision of Co along with the decision of Co-ordinate Bench of the Tribunal in the ordinate Bench of the Tribunal in the case of Flagship Indian Investment Co. (Mauritius) Ltd. (supra). In f Flagship Indian Investment Co. (Mauritius) Ltd. (supra). In f Flagship Indian Investment Co. (Mauritius) Ltd. (supra). In view of the above, we do not find any infirmity in the order of the view of the above, we do not find any infirmity in the order of the view of the above, we do not find any infirmity in the order of the Ld. CIT(A) on the issue in dispute. The grounds raised by the Ld. CIT(A) on the issue in dispute. The grounds raised by the Ld. CIT(A) on the issue in dispute. The grounds raised by the Revenue are accordingly dismissed. Revenue are accordingly dismissed.