DDIT(IT) 3(1), MUMBAI v. HSBC GLOBAL EMERGING MARKETS EQUITY FUND, MUMBAI

ITA 5043/MUM/2010 | 2007-2008
Pronouncement Date: 23-09-2011 | Result: Dismissed

Appeal Details

RSA Number 504319914 RSA 2010
Assessee PAN AAATH5954L
Bench Mumbai
Appeal Number ITA 5043/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 5 day(s)
Appellant DDIT(IT) 3(1), MUMBAI
Respondent HSBC GLOBAL EMERGING MARKETS EQUITY FUND, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 23-09-2011
Date Of Final Hearing 20-09-2011
Next Hearing Date 20-09-2011
Assessment Year 2007-2008
Appeal Filed On 17-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI R.S. SYAL (AM) & SHRI V. DURGA RAO (JM ) I.T.A.NO.5043/MUM/2010 (A.Y. 2007-08) DY. DIRECTOR OF INCOME-TAX (IT)-3(1) SCINDIA HOUSE R.NO.136 1 ST FLOOR N.M. ROAD MUMBAI. VS. M/S. HSBC GLOBAL EMERGING MARKETS EQUITY FUND C/O. BSR & CO. KPMG HOUSE KAMALA MILLS COMPOUND 448 SENAPATI BAPAT ROAD LOWER PAREL MUMBAI-400 013. PAN: AAATH5954L APPELLANT RESPONDENT I.T.A.NO.5042/MUM/2010 (A.Y. 2007-08) DY. DIRECTOR OF INCOME-TAX (IT)-3(1) SCINDIA HOUSE R.NO.136 1 ST FLOOR N.M. ROAD MUMBAI. VS. M/S. HSBC INDIAN EQUITY MOTHER FUND KPMG HOUSE KAMALA MILLS COMPOUND 448 SENAPATI BAPAT ROAD LOWER PAREL MUMBAI-400 013. PAN: AAAAH1765J APPELLANT RESPONDENT APPELLANT BY SHRI V.V. SHASTRI. RESPONDENTS BY SHRI ARVIND SONDE. DATE OF HEARING 20-09-2011 DATE OF PRONOUNCEMENT 23-09-2011 O R D E R PER R.S. SYAL AM : THESE TWO APPEALS BY THE REVENUE RELATING TO ASSE SSMENT YEAR 2007-08 HAVE BEEN FILED IN RELATION TO TWO CONNECTE D TWO DIFFERENT ITA NOS.5043 & 5042/M/10 HSBC GLOBAL EMERGING MARKETS EQUITY FUND & ANR. 2 ASSESSEES. SINCE BOTH THE APPEALS ARE BASED ON IDEN TICAL FACTS AND COMMON GROUND OF APPEAL WE ARE THEREFORE PROCEED ING TO DISPOSE OF THESE APPEALS BY THIS CONSOLIDATED ORDER FOR THE SA KE OF CONVENIENCE. ITA NO. 5043/MUM/2010: 2. THE FOLLOWING EFFECTIVE GROUND HAS BEEN RAISED IN T HIS APPEAL : 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE CIT(A) ERRED IN DIRECTING THE AO TO ALLOW SET OFF OF SHORT TERM CAPITAL LOSS (STT PAID) OF RS.11 06 184/- AGAINST SHORT TERM CAPITAL GAIN (NON STT PAID) OF RS.4 41 39 174/-. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A FOREIGN INSTITUTIONAL INVESTOR. IT EARNED SHORT-TERM CAPITA L GAIN ON SALE OF CERTAIN SHARES ON WHICH STT WAS NOT PAID. THE ASSESSEE ALS O SUFFERED SHORT-TERM CAPITAL LOSS AFTER SET OFF OF SHORT-TERM CAPITAL GA IN ON WHICH STT WAS PAID. THE AO DISALLOWED THE CLAIM OF SET OFF AGAINST SHOR T-TERM CAPITAL LOSS. THE TOTAL NET TAXABLE SHORT-TERM CAPITAL GAIN (NON STT PAID) WAS COMPUTED AT RS.11 06 184/- CHARGEABLE TO TAX @ 30% BEING NON ST T TRANSACTION. 3. THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST A PPELLATE AUTHORITY WHO GOT CONVINCED WITH THE ASSESSEES SUBMISSION AND DI RECTED THE AO TO ALLOW SET OFF OF SHORT-TERM CAPITAL LOSS (STT PAID) AGAIN ST SHORT-TERM CAPITAL GAIN (NON STT PAID). 4. AT THE VERY OUTSET THE LD. COUNSEL FOR THE ASSE SSEE PLACED ON RECORD A COPY OF THE ORDER PASSED BY THE MUMBAI BENCH OF T HE TRIBUNAL IN FIRST ITA NOS.5043 & 5042/M/10 HSBC GLOBAL EMERGING MARKETS EQUITY FUND & ANR. 3 STATE INVESTMENTS (HONGKONG) LTD. VS. ASST. DIRECTO R OF INCOME-TAX (INTERNATIONAL TAXATION) MUMBAI (2009) 33 SOT 26 (MUM) IN WHICH THE ISSUE HAS BEEN DECIDED IN ASSESSEES FAVOUR. 5. THE LD. D.R. FAIRLY CONCEDED THE POSITION HAVI NG REGARD TO THE ABOVENOTED DECISION AND COULD NOT DISTINGUISH THE FACTS OF THE INSTANT CASE WITH THOSE OF FIRST STATE INVESTMENTS (HONGKONG) LT D. (SUPRA). AS THE VIEW TAKEN BY THE CIT(A) IS IN CONSONANCE WITH THAT TAKE N BY THE TRIBUNAL IN THE AFORENOTED CASE WHICH HAS NOT BEEN SHOWN TO BE REV ERSED OR MODIFIED BY THE HONBLE HIGH COURT IN OUR CONSIDERED OPINION THE IMPUGNED ORDER CANNOT BE INTERFERRED WITH. 6. THE FACTS AND CIRCUMSTANCES OF THE OTHER APPEAL IN ITA NO.5042/MUM/2010 ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF ITA NO.5043/MUM/2010 DISCUSSED ABOVE. NO DISTINGUISHING FEATURE WAS BROUGHT TO OUR NOTICE BY THE LD. D.R. FOLLOWING THE VIEW TAKEN HEREINABOVE WE UPHOLD THE IMPUGNED ORDER IN ITA NO .5042/MUM/2010. 7. IN THE RESULT BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED ON THE 23RD DAY OF SEPTEMBER 2011. SD/- SD/- (V. DURGA RAO) (R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 23RD SEPTEMBER 2011. ITA NOS.5043 & 5042/M/10 HSBC GLOBAL EMERGING MARKETS EQUITY FUND & ANR. 4 NG: COPY TO : 1. DEPARTMENT. 2.ASSESSEES. 3 CIT(A)-10 MUMBAI. 4 DIT (IT) MUMBAI. 5.DR H BENCH MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER ASST.REGISTRAR ITAT MUMBAI. ITA NOS.5043 & 5042/M/10 HSBC GLOBAL EMERGING MARKETS EQUITY FUND & ANR. 5 DETAILS DATE INITIALS DESIGN ATION 1. DRAFT DICTATED ON 20-09-11 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 20-09-11 SR.PS/ 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10 . DATE OF DISPATCH OF ORDER *