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Bay Capital India Fund Limited, ... vs Assistance Commissioner Of Income Tax, ... on 20 June, 2024
cites
The Income Tax Act, 1961
Section 74 in The Income Tax Act, 1961 [Entire Act]
Section 45 in The Income Tax Act, 1961 [Entire Act]
M/S. J.P.Morgan Indian Investment ... vs Acit (It) 3(1) (1) , Mumbai on 27 September, 2022
6. We heard the rival submission and perused the documents available on record.
There is no dispute that the assessee is entitled to get exemption under Article-
13(4) of DTAA amount to Rs. 26,36,44,954/-. But the dispute between the parties
is whether it will be adjusted with thebrought forwarded loss or not. Considering
the plain reading of the section that capital loss, after being carried forward, can
be set off only against income under the head capital gains. Therefore, existence
of a taxable income is a precondition for a set of losses against such income. In
17
ITA No.4475 /Mum/2024
Bay Capital India Fund Limited
this appeal, the gains of Rs.26,36,44,954/- are admittedly exempt by virtue of
article 13(4) of the treaty. The said gains, therefore, cannot be termed as income
for the purpose of section 74 of the Act. We relied on the orders of the
Coordinate Bench of ITAT-Mumbai in the cases of Swiss Finance Corporation
(Mauritius) Ltd(supra) and J.P. Morgan India Investment Company Mauritius
Ltd(supra). In our considered view the answer is against revenue.
Goldman Sachs & Co, Mumbai vs Dcit (It)-2(3)(2), Mumbai on 8 May, 2023
Further, in the case of Goldman Sachs Investments (Mauritius) Ltd v Deputy
Commissioner of Income tax (International Taxation) - 2(3)(2), the
department has not accepted the decision of the Hon'ble ITAT and further
appeal has been filed in this case.
M.S.P. Nadar Sons, Virudhu Nagar vs Commissioner Of Income Tax (Central), ... on 28 April, 1993
Bay Capital India Fund Limited
Further, it is pertinent to note that the matter under examination is a legal
issue. As it has been discussed in details above, in view of the binding
precedents set by the Supreme Court in cases like M.S.P Nadar Sons v CIT
[1993] 68 Taxman 152 (SC), CIT v M.S.P Nadar Sons [1989] 43 Taxman 231
(Madras), CIT v VVenkatchalam [Civil Appeal No.3044 of 1983, dated
13.4.1993] and B.M. Kamdar, In re [1946] 14 ITR 10 (Bombay), it is
imperative to emphasize that "Capital Gains" as part of "Total Income" for
an A.Y. is to be computed as per provisions of the Domestic Act and the
during that process, the question of Treaty benefit does not arise, since
Treaty does not lay down any computation mechanism.
Section 4 in The Income Tax Act, 1961 [Entire Act]
Section 5 in The Income Tax Act, 1961 [Entire Act]
Goldman Sachs Investments ( Mauritius ) ... vs Dcit (It) 2(3)(2), Mumbai on 24 September, 2020
The exempted
income is not a part of taxable Gross Total Income.The non-grandfathered LTCG
will be adjusted with brought forwarded loss, following the order of Goldman
Sachs Investments (Mauritius) Ltd.(supra). The orders which are relied on by the
ld. DR aredistinguishable. The impugned final assessment order is dismissed. The
appeal of the assessee is succeeded.