ACTION FINANCIAL SERVICES INDIA LTD,MUMBAI vs. ACIT 4(1), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA no.1823/Mum./2012 (Assessment Year: 2008–09)

Action Financial Services India Ltd., 31, 4th Floor, Rajgir Chambers , 12/14, ……………. Appellant Shahid Bhagat Singh Rd, Fort, Mumbai 400001, PAN AAACA4423G v/s

ACIT 4(1) ……………. Respondent Mumbai Assessee by : Shri. K. Shivaram Revenue by : Shri. Rajesh Kumar Yadav

Date of Hearing –06.03.2017 Date of Order -03.05.2017

O R D E R PER: SHAMIM YAHYA

This appeal by the assessee is directed against order of dated 02.01.2014 pertains to assessment year 2008-09.

Action Financial Services India Ltd., ITA no.1823/Mum./2012

Indexation

Action Financial Services India Ltd., ITA no.1823/Mum./2012 4. The Ld. CIT(A) erred in confirming the disallowance of Rs.21 ,95,748/- u/ s 14A, without appreciating the fact that the appellant held shares of BSE where were received in lieu of the membership card, after corporation, and not to earn any exempt income. The appellant has never received any dividend from the aforesaid shares. Hence disallowance u/s. 14 A may be deleted. 5. The Ld. CIT(A) erred in confirming the disallowance of Rs.21,95,748/- u/s. 14A, without appreciating the fact that no expenses were incurred by the company to earn the exempt income. 6. The Ld. CIT(A) failed to appreciate the fact that the Assessing officer had invoked S.14A r.w. Rule 8D without recording any satisfaction and pointing out how the method adopted by the Assessee was not justified and thereby automatically and mechanically applied S. 14A r.w. Rule 8D. 7. Without prejudice to above, as per the working of the Assessee, the disallowance under Rule 8D could be of Rs.10,17,038/- as against Rs.21,95,748/- as computed by the Assessing officer. 8. The Appellant craves leave to add, amend, alter or delete any or all the above grounds of appeal.

Action Financial Services India Ltd., ITA no.1823/Mum./2012 3. Apropos ground no. 1

3.1 The assessee had filed its return of income claiming long term capital gain on the sale of Rs.8,211/- shares Bombay Stock Exchange Ltd. and the gain on the same was Rs.3,03,80,700/-. The said gain was calculated without claiming the benefit of indexation u/s. 48 of the Act. The assessee during the proceedings requested to AO to grant the benefit of indexation for the purpose of calculating long term capital gains on sale of Rs.8,211/- share of BSE Ltd. But the AO did not consider the claim of the assessee and has taken the long term capital gains on the sale of Rs.8,211 shares of BSE Ltd. at Rs.3,03,80,700/-. 3.2 Upon assessee appeal Ld. CIT-A confirmed the AO’s action. He held as under:

“I have considered the submission of the AR, and I am of the considered opinion that the claim of the Ld. AR cannot be admitted as neither it has claimed the same in its return of income nor it has filed the revised return of income claiming the benefit of the same. This view of mine also fortified by the judgement of Hon’ble Supreme Court has categorically laid down the ratio that no claim of deduction or otherwise can be admitted by the AO otherwise than by the claimed by filing a revised return of income.”

Action Financial Services India Ltd., ITA no.1823/Mum./2012 3.3 Against the above order assessee’s in appeal before us. We have heard both the counsel and perused the records. We find that in the said judgment of Goetz (India) Ltd. Honourable Apex Court had held that the said decision did not impinge upon the power and rights of the tribunal. In our considered opinion claim of the assessee deserves adjudication. Accordingly we remit this issue to the file of the AO to consider the assessee’s claim and decide as per law. Needles to add assessee should be granted adequate opportunity of being heard.

4.1 Brief facts of this issue are as under:

The assessee had incurred a short term capital loss on sale of shares amounting to Rs.4,92,496/- during the AY 2007-08. During the year, the assessee had short term capital gains under two categories i.e. (i) short term capital gains of Rs.12,69,308/- chargeable to tax @ 10% and (ii) short term capital gains of Rs.18,00,000/- chargeable to tax @ 30%. The assessee had set off the brought forward short term capital loss of Rs.4,92,496/- against the short term capital gains of Rs.12,69,308 chargeable to tax @ 10%. However, the AO has set off the brought forward short term

Action Financial Services India Ltd., ITA no.1823/Mum./2012 capital loss as stated above against the short term capital gains of Rs.18,00,000 chargeable to tax @ 30%.

4.2 Upon assessee’s appeal Ld. CIT-A held as under:

“I have considered the contention of the AO as well as of the Ld. AR. As per provisions of sec. 74 (1)(a). whereas the result of computation under the head capital gains is a loss to the assessee, the whole of such loss shall be carried forward to the following assessment year and such loss if is a loss pertaining to short term capital asset, it shall be set off against the income assessable under the head “capital gains”. Therefore, section 74(1)(a) requires to set off the brought forward short term capital loss against the income from capital gains whether the gains are arising from short term or long term capital asset during the year. I am of the considered opinion that while granting the set off of brought forward losses, the gains which have arose or accrued first should be set off against the brought forward short term capital losses. The appellant has several categories of gains accruing or arising and assessable under the head “capital gains” i.e. it has long term capital gains chargeable to tax as well as long term capital which are exempt and also short term capital gains chargeable to tax @ 10% and 30% respectively. The brought forward short term capital loss is to be set off against

Action Financial Services India Ltd., ITA no.1823/Mum./2012 the capital gains chargeable to tax whether long term or short term. The AO is directed to proved the benefit of set off of the brought forward short term capital loss of Rs. 4,92,496/- against the gains which has accrued and arose during the year under consideration whether such gains is a long term or a short term capital gain irrespective of the rate at which the same are chargeable to tax. The ground of appeal is allowed for statistical purposes.’’

4.3 Against the above order assessee’s in appeal before us we have heard both the counsel and perused the records. Ld. Counsel of the assessee has made following submissions in this regard:

1) The FIFO method has not been prescribed in the Income-tax Act, 1961 for setting off of brought forward losses. 2) As per section 74(1)(a), the brought forward short term capital loss can be set off against income under the head" capital gains" assessable for that assessment year in respect of any other capital asset. Thus, the Legislature has given a choice to the assessee to set off the brought forward short term capital loss against the gains on sale of any capital asset including those that are chargeable to tax @ 30%. 3) Thus, the assessee was correct in setting off the brought forward short term capital loss against short term capital gain taxable @ 30% and not 10%.

Action Financial Services India Ltd., ITA no.1823/Mum./2012 4) Dy. CIT v. Noble Enclave & Towers (P) Ltd. (2012) 50 SOT 5 (Kol.)(Trib.) (13)(Para 23) Assessee can adopt method which is most beneficial to him The Assessing Officer computed short term capital gain and short term capital loss, suffered by assessee separately for the periods 1-4-2004 to 30-9-2004 & 1- 10-2004 to 31-3-2005. He allowed the set off of the short term capital loss against, short term capital gains earned during 1-10-2004 to 31- 03-2005 and levied the tax on the net short term capital gains. In appeal before the Commissioner (Appeals) the assessee submitted that as per section 70 assessee is entitled to set off loss under short term capital gains against income from short term capital gains. Section 70 nowhere provides that short term capital loss arising from STT paid transactions can only be set off against short term capital gains or long term capital gains. The Commissioner (Appeals) accepted the contention of assessee and allowed the appeal. On appeal to the Tribunal by revenue, the Tribunal held that since no particular mode or manner of set off is provided in Act, the assessing Officer should 'adopt that chronological order or manner which is most beneficial to assessee, relying on the Circular o. 26 (LXVGI-3 of 1955 dated 7- 7-1955) (A.Y.2005-06) The ratio of this case would also be applicable to Section 74. Capital International Emerging Markets Fund v. Dy. DIT (2013) 145 ITD 491 (Mum.)(Trib.) (497) (Para 3.2)

Action Financial Services India Ltd., ITA no.1823/Mum./2012 The Tribunal held merely because two set of transactions are liable for different rate of tax, it cannot be said that income from these transactions does not arise from similar computation, particularly when computation in both cases has to be made in similar manner under same provisions and, therefore, short-term capital loss arising from STT paid transactions can be set off against short-term capital gain arising from non-STT transactions. (A Y. 2007-08) The ratio of this case would also be applicable to Section 74. 5) Rallis India Limited v. ITO [1987] 23 ITD 1 (Cal.) (Trib.) (Para 7)(Pg.5) In the AY 1982-83, the assessee made long-term capital gains from two sources, namely, land and buildings, and shares. It claimed that the capital loss on shares brought forward from the preceding assessment year be set off against the capital gains from land and buildings. The ITO and the CIT (A) however, adjusted this loss against capital gains from shares. The Tribunal held that as per section 74(1)(a)(ii), long term capital loss ought to be set off against the long term capital gains and it does not lay down that long term capital loss from transfer of one particular type of capital asset must be set off against long term capital gains from transfer of similar capital asset. 6) Punjab Produce & Trading Co. Ltd. vs. CIT (1986) 159 ITR 376 (Cal.)(HC) - Set off against other incomes 9

Action Financial Services India Ltd., ITA no.1823/Mum./2012 in preference to long' term capital gains. Harmonious construction of S.70(2)(i) and 71(3) leads to conclude that assessee having loss in respect of short-term capital asset can claim set off under other heads in preference to income under the head long - term capital gains. 7) CIT vs. Mahendra Kanaiyalal, HUF (1993) 202 ITR 701 (Guj.)(HC) – In as such as assessee has option u/s 71 and rights conferred u/s 70(2)(i) and 71(3) are severable and separate and thus short term capital loss can be set off against income from other heads. 8) Without prejudice to the above, if two interpretations are possible, the interpretation which is more favourable to the assessee, must be adopted. CIT v. Vegetable Products limited [1973] 88 ITR 192 (SC). 4.4 Per contra Ld. DR relied upon the order’s of the Ld. CIT-A.

4.5 We have carefully considered the submissions and perused the records. We find that section 74(1) provides for as under:-

“74. (1) Where in respect of any assessment year, the net result of the computation under the head "Capital gains" is a loss to the assessee, the whole loss shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and— (a) insofar as such loss relates to a short-term capital asset, it shall be set off against income, if any, under the head "Capital gains" assessable for that assessment year in respect of any other capital asset; (b) insofar as such loss relates to a long-term capital asset, it shall be set off against income, if any, under the head "Capital gains" assessable for that assessment year in respect of any other capital asset not being a short-term capital asset; (c) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on.”

Action Financial Services India Ltd., ITA no.1823/Mum./2012

4.6 A reading of the above makes it clear that for the setting of brought forward loss no specific provision is their which provides for the sequence in which different categories of short term capital gains have to be adjusted first. The decisions and case law referred by the Ld. Counsel of the assessee expound that in such situation when the act has not specified the manner the preference of assessee would prevail. This view is also supported by Hon’ble Apex Court decision in the case of Vegetable Products (Supra) that if two constructions are possible the one in favour of the assessee should be adopted. Accordingly, in view of the above discussion and precedent’s we do not find any infirmity in the assessee’s treatment of brought forward loss. Accordingly, we set aside the order’s of authorities below and decide the issue in favour of assessee.

5.1 These grounds relate to disallowance of the sum of Rs. 21,95,748/- u/s. 14A of the Act. In this regard assessee has also raised an additional ground are reads as under:

Action Financial Services India Ltd., ITA no.1823/Mum./2012 disallowance of Rs.21,95,748/- confirmed by the Ld. CIT-A may be deleted.

5.3 Upon hearing both the counsel and perusing the records, in the interest of justice we admit the additional ground. This ground also needs factual verification at the level of AO. Accordingly we remit this issue to the file of the AO. The AO shall factually examine the issue and decide as per law. Since the need to adjudicate grounds raised in ground no. 4 to 7 will arise after adjudication of this additional ground, we are not engaging with the same. Assessee is at liberty to canvass the same afresh if it so desires.

In the result this appeal by the assessee stands allowed for statistical purposes.

Order pronounced in the Open Court on 03.05.2017

Sd/- Sd/-

RAVISH SOOD SHAMIM YAHIYA JUDICIAL MEMBER ACCOUNTANT MEMBER

MUMBAI, DATED: 03.05.2017

Action Financial Services India Ltd., ITA no.1823/Mum./2012 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. opy By Order Nishant Verma Sr. Private Secretary (Dy./Asstt.Registrar) ITAT, Mumbai

Action Financial Services India Ltd., ITA no.1823/Mum./2012