GOLDMAN SACHS INDIA INVESTMENTS (SINGAPORE) PTE LTD,MUMBAI vs. DCIT (IT) 2(3)(2), MUMBAI

The learned AO has denied the Appellant's right to carry forward the short- term capital losses incurred during the  the provisions of section 90(2) of the Act which provides that where the Central Government has entered into an agreement with the Government of any country outside India for granting relief of tax, or as the case may be, avoidance of double taxation, then, in relation to an Appellant to whom such agreement applies, the provisions of the Act shall apply to the extent, they are more beneficial to that Appellant; and  the fact that every assessment year is a separate unit and it is upto the discretion of the Appellant to determine whether the

The learned AO failed to follow the decision of the jurisdictional Tribunal in the case of Flagship Indian Investment Co. (Mauritius) Ltd v. ADIT (IT) (2008) 114 ITD 159 (Mumbai ITAT).”

Briefly stated facts are that the assessee company is incorporated in Singapore and registered with the Securities and Exchange Board of India (SEBI) as a sub-account of Goldman Sachs & Co (Registration No. IN-US-FA-0220-94). Goldman Sachs & Co. is registered with the SEBI as a FII. During the financial year ended 31.03.2012 relevant to this AY 2012-13, the assessee company has incurred short term capital loss amounting to Rs.20,59,69,056/-. The Assessing Officer during the course of assessment proceedings required the assessee to explain as to why the short term capital loss is incurred during the Assessment Year 2012-13 should be allowed to be carry forward to subsequent years. The assessee before Assessing Officer submitted that it is a tax resident to Singapore and hold a valid tax resident certificate. India has entered into a Double Taxation Avoidance Agreement (DTAA) with Singapore. Thus, in view of the provision of Section 90(2) of the Act, the provisions of the Act, to the extent more beneficial to the assessee would apply. The Assessing Officer has not accepted the scheme of the assessee and disallowed.

Before us, the learned counsel for the assessee explained the fact that the Assessing Officer has claimed that since the capital gains earned by the Assessee is exempt under the provisions of the IS treaty, it follows that capital losses are to be ignored. Pursuant to concluding on the matter of capital losses for the current year, the Assessing Officer has further denied the Assessee's to claim carry forward of such capital losses to subsequent years. In this connection, it is pertinent to note that as per provisions of section 74 of the Act, after the computation of capital gains if loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following eight assessment years. In the instant case the Assessee had incurred short-term capital losses, the Assessee has elected to be assessed under the provisions of the Act and has claimed carry forward of losses. As noted from the provisions of section 74 of the Act that once the amount of capital losses to be carried forward under section 74 of the Act are quantified (and not disputed by the Revenue), it follows that such losses would be permitted to be carried forward and be available for set off against taxable income of subsequent years. While the set- off of such losses in any subsequent year under assessment may be examined, where the same have not been offset in a subsequent year under assessment, it is not open to the Assessing Officer to deny the carry forward of losses so

The learned Counsel for the stated that the assessee’s issue is covered in assessee’s sister concern case in the case of Goldman Sachs Investments (Mauritius) Ltd. Vs. DCIT (2020) 120 taxmann.com 23 (Mum-Trib.), wherein the following ground was adjudicated. The learned Counsel for the assessee took us through Para 12 of the order and finally stated that “At this stage, we may herein observe that it is for the assessee to examine whether or not in the light of the applicable legal provisions and the precise factual position the provisions of the IT Act are beneficial to him or that of the applicable DTAA. In any case, the tax treaty cannot be thrust upon an assessee. In case the assessee during one year does not opt for the tax treaty, it would not be precluded from availing the benefits of the said treaty in the subsequent years. Our aforesaid view is fortified by the order of the ITAT, Pune in Patni Computer Systems Ltd. (supra). We thus in terms of our aforesaid observations, not being able to persuade ourselves to subscribe to the view taken by the A.O/DRP, who as noticed by us hereinabove had sought adjustment of the b/forward STCL against the exempt short term and long term capital gains earned by the assessee during the year in question, thus 'set aside' the order of the A.O in context of the issue under consideration.

From the above, we noted that it is very clear that while determining taxability of the income of an assessee, if provisions of the Act are more beneficial as compared to the tax treaty then the beneficial provisions of the Act will apply in determining the taxability of such income. Thus, having regard to the provisions of section 90(2) of the Act and given that the provisions of section 74 of the Act permit the Assessee to carry forward capital losses to subsequent assessment years, the provisions of the Act are more beneficial than the provisions of the IS treaty. For the year under consideration, the Assessee has filed its return of income in accordance with the provisions of the Act. Based on judicial jurisprudence, the provisions of the IS treaty cannot be thrusted upon the Assessee simply because the Assessee is a tax resident of a country with which India has entered into a tax treaty or on account of the mere perception of the AO that the Assessee may claim benefits under the tax treaty in subsequent years. Accordingly, we are of the view that the capital losses incurred from transactions in the Indian capital markets amounting to Rs 205,969,056 should be construed as income accruing or arising from transactions undertaken in India falling within the scope of section 5 of the Act and therefore, the same should be eligible to be carried forward to subsequent years