Chicago Pneumatic vs. DDIT (ITAT Mumbai)

DATE: (Date of pronouncement)
DATE: August 2, 2009 (Date of publication)

Click here to download the judgement (chicago_pneumatic_proviso_112.pdf)

Non-residents are eligible for the benefit of second proviso to s. 112

The assessee was a non-resident. It earned long-term capital gains on sale of shares. The Proviso to s. 112 provides that if the tax payable on LTCG exceeds 10% before indexation under the second proviso to s. 48, the excess shall be ignored. As non-residents who bought shares in foreign currency are not eligible to the benefit of indexation, the question arose whether the benefit of the proviso to s. 112 can be given to the assessee. HELD, upholding the assessee’s stand that:

The fact that the proviso to s. 112 uses the words ‘before giving effect to the second proviso to s. 48’ does not mean that the benefit of the lower rate can be given only to those cases eligible for the indexation benefit. Even non-residents who are not eligible for indexation are eligible for the lower rate of 10%.

See Also: Burmah Castrol Plc In Re 16 DTR 145 (AAR), Four Star Oil & Gas Co In Re. 21 DTR (AAR) 50 and Mohanlal N. Shah 26 SOT 380 (Mum)