Foreign exchange fluctuation loss incurred for the purpose of borrowing in the business of financing and leasing is a revenue expenditure allowable u/s 37: WIPRO Finance Limited Vs CIT

 

Supreme court in the case of WIPRO Finance Limited Vs CIT vide its judgment dated 12^th April,2022 has held that foreign exchange fluctuation of Rs 1.10 crore incurred for the purpose of borrowing in the business of financing and leasing is a revenue expenditure allowable u/s 37. It has also held that the ITAT has power to entertain a new claim of Rs. 2.46 crores for the first time.

The Hon’ble three judges bench of Supreme Court in this case was considering assessee’s appeal against the order of the High court which had reversed the findings of ITAT that the expenditure of Rs 1.10 crore towards foreign exchange fluctuation loss was a revenue expenditure.

The Hon’ble Court based on the famous decision in the case of India Cement as well as Empire Jute held that as no new asset was created, the expenditure was fully allowable.

Also the Court upheld the power of ITAT to allow a fresh claim for the first time before it by explaining the limitation to entertain a fresh claim in view of the decision in the case of Goetze India Ltd would apply only as far as claim before AO is concerned and ITAT having been vested with plenary powers no such limitations can be read into the provisions. Thus, the appeal was allowed.

Honble SC has well discussed the decision in the case of NTPC and Goetze(India). Two important issues regarding claim of forex difference and power to entertain all- together new claim before ITAT receive the stamp of approval by the highest court of the country. The issue now stands settled and let us hope that the issue would no more be the matter of the litigation by the department.

The copy of the order is as under:

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6677 OF 2008

WIPRO FINANCE LTD.                            …APPELLANT

VERSUS 

COMMISSIONER OF INCOME TAX                        …RESPONDENTS O R D E R 

1. This appeal takes exception to the judgment and order dated 2.4.2008 passed by the Division Bench of the High Court of Karnataka at Bengaluru in I.T.A. No. 633/2004.

2. Briefly   stated,   the   appellant   company   submitted   returns   of income   on   29.11.1997   for   the   assessment   year   1997­1998, mentioning   loss   of   income,   amongst   others,  owing   to   exchange fluctuation of Rs.1,10,53,909/­.   After processing the return under Section 143(1)(a) of the Income Tax Act, 19611, the assessment was completed on 16.3.2000.  As against the loss declared by the appellant  due   to   exchange   fluctuation,   the   assessment   was   concluded   by 1 for short, “the 1961 Act”  positive taxable income.  Against that decision, the matter was carried in appeal by the appellant before the Commissioner of Income Tax (Appeals)2  and eventually, by way of appeal before the Income Tax Appellate Tribunal3 being I.T.A. No. 795 (Bang)/2000.

3. In the appeal before the ITAT, the appellant not only claimed deduction in respect of loss of Rs.1,10,53,909/­ arising on account of exchange  fluctuation,   but  also  set  up a  fresh   claim  in  respect  of revenue   expenses   to   the   tune   of   Rs.2,46,04,418/­,   erroneously capitalised in the returns.  The ITAT entertained this fresh claim set forth   by   the   appellant   and   recorded   in   its   judgment   that   the department’s   representative   had   no   objection   in   that   regard. Additionally,   the   ITAT   adverted   to   the   decision   of   this   Court   in National   Thermal   Power   Co.   Ltd.   vs.   Commissioner   of   Income Tax4 in   support,   for   entertaining   fresh   claim   of   the   appellant   in exercise of powers under Section 254 of the 1961 Act.  The ITAT, in the   first   place,   reversed   the   finding   given   by   CIT(A)   regarding application of Section 43A of the 1961 Act.  The ITAT opined that the said provision had no application to the fact situation of the present case.   Having said that, it then proceeded to consider the question  whether   the   loss   suffered   by   the   appellant   owing   to   exchange  fluctuation   can   be   regarded   as   revenue   expenditure   or   capital expenditure incurred by the appellant, and answered the same in favour   of   the   appellant   by   holding   that   it   would   be   a   case   of expenditure on revenue account and an allowable deduction.   The ITAT answered the same in the following words: ­

“…..   So   far   as   the   argument   whether   the   impugned expenditure or loss is revenue or capital in nature we find

that the funds borrowed were utilized for the purposes of regular finance business carried on by the assessee.

Such an income has also been offered for taxation and accepted by the department.  Quantification of exchange fluctuation loss has been done as per rule 115 of the I T Rules.  Said rule must be applied in computing the total income of the assessee had held by the Supreme Court in CIT vs. Chowgule Co Ltd. – 218 ITR   384.    Further   the   exchange   fluctuation   loss   is   an expenditure   incidental   to   carrying   on   of   business   and comes within the purview of section 37 of the Act as the same is incurred wholly and exclusively for the purposes of business.   It is nobody’s case that the funds borrowed in foreign exchange have been diverted for non ­business purposes.  In such a case the decision of the Supreme Court in India Cement Case (supra) fully covers the issue in favour of the assessee.   We also find that in this case, assessee’s claim satisfies all the tests laid down by Supreme Court in 124 ITR 1 extracted supra.   In this case entire borrow of loan and the utilization of the same, is in trading operations of the company more profitably and the fixed capital in this case is untouched.   Hence the expenditure is on revenue account and allowable.

We also find the loss incurred by the assessee cannot be treated as contingent in nature as the loss on account of foreign exchange fluctuation has been quantified in terms of rule 115 of IT Rules and further the liability is real as per terms of the agreement with CDC.  Just because the liability is payable in future does not covert the actual liability into contingent liability as held by the Supreme Court in Cacutta Co Ltd. vs. CIT – 37 ITR 1 and Bharat Earth Movers Ltd. vs. CIT – 245 ITR 428.  Similar view has been expressed by ITAT special bench in ONGC case 83 ITR 51 (SB).   Looking from any angle the claim on this issue is allowable.  Accordingly,

we allow the entire claim of Rs.3,56,57,727/­.  We direct the AO to do so.  This issue is held in favour of the assessee.”

(emphasis supplied)

4. The matter was carried before the High Court by thedepartment. Amongst others, following questions were formulated for consideration as substantial questions of law concerning subject deduction claimed by the appellant.  The same read thus: ­

“(3)  Whether on facts and in the circumstances of the case, the Tribunal is justified in deleting the dis­allowance of claim  to   the   tune   of   Rs.1,10,53,509/­   for   the   assessment   year  1997­98 in respect of exchange fluctuation that was made by the Assessing Officer? (in ITA No. 633/2004 only).

(4)    Whether on facts and in the circumstances of the case, the Tribunal is justified in allowing the additional claim of Rs.2,46,04,418.00 for the assessment year 1997­98 holding that the capitalisation of the said sum is to be treated as revenue expenses? (in ITA No. 633/04 only).”

The High Court vide impugned judgment has reversed the view taken by   the   ITAT,   mainly   observing   that   the   ITAT   had   not   recorded sufficient reasons in support of its conclusion and in any case, the conclusion was without any basis.

5. We have heard Mr. S. Ganesh, learned senior counsel for the appellant   and   Mr.   Vikramjit   Banerjee,   learned   Additional   Solicitor General appearing for the respondent.

6. The broad undisputed relevant facts, as can be culled out from the record are that the appellant entered into a loan agreement with one   Commonwealth   Development   Corporation   having   its   registered office at England in the United Kingdom, for borrowing amount to carry on its project described in Schedule 1 to the agreement ­ for expanding its primary business of leasing and hire purchase of capital equipment to existing Indian enterprises.  Schedule 1 of the agreement reads thus: ­

“SCHEDULE 1 (referred to in Recital A) Description of the Project The Project consists of the financing by the Company of the acquisition of plant, machinery and equipment to be used in its leasing business in accordance with the applicable laws and regulations of India and the Company’s Memorandum  and Articles of Association.”

The loan was obtained in foreign currency (5 million pounds sterling). However, while repaying the loan, due to the difference of rate of foreign exchange, the appellant had to pay higher amount, resulting in loss to the appellant.   Indeed, the loan amount was utilised by the appellant for financing the existing Indian enterprises for procurement of   capital   equipment   on   hire   purchase   or   lease   basis.     The   fact remains that the activity of financing by the appellant to the existing Indian enterprises for procurement or acquisition of plant, machinery and equipment on leasing and hire purchase basis, is an independent transaction or activity being the business of the appellant.

7. Asregards, the transaction of loan between the appellant and Commonwealth Development Corporation, the same was in the nature of   borrowing   money   by   the   appellant,   which   was   necessary   for carrying on its business of financing.  It was certainly not for creation of asset of the appellant as such or acquisition of asset from a country outside India for the purpose of its business.  In such a scenario, the appellant would be justified in availing deduction of entire expenditure or loss suffered by it in connection with such a transaction in terms of Section 37 of the Act.  For, the loan is wholly and exclusively used for the purpose of business of financing the existing Indian enterprises, who in turn, had to acquire plant, machinery and equipment to be used by them.  It is a different matter that they may do so because of the leasing and hire purchase agreement with the appellant.   That would be, nevertheless, an activity concerning the business of the appellant.  In that view of the matter, the ITAT was right in answering the claim of the appellant in the affirmative, relaying on the dictum of this Court in IndiaCements Ltd. vs. Commissioner of Income Tax, Madras5.  The exposition in this decision has been elaborated in the 5 AIR 1966 SC 1053 subsequent   decision   of   this   Court   in  Empire   Jute   Co.   Ltd.   vs. Commissioner of Income Tax6.

8. The ITAT has extracted the relevant portion of the decision in India Cements Ltd.7, which reads thus: ­

“7.….. where there is no express prohibition, an outgoing, by means of which an assessee procures the use of a thing by which it makes a profit, is deductible from the receipts of the business to ascertain taxable income. …..

xxx xxx xxx

16. ….. the loan obtained is not an asset or advantage of anenduring nature….. the expenditure was made for securing the use of money for a certain period … and it is irrelevant to consider the object with which the loan was obtained. …..

17. ….. the act of borrowing money …..  was not incidental tothe carrying on of a business. …..”

18. Similarly, the exposition in the case of Empire Jute Co. Ltd.8 is also extracted by the ITAT, which reads thus: ­

“5.….. it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the   payment   is   revenue   or   capital   disbursement   qua   the payer. …..

xxx xxx xxx

8. …..   There   may   be   cases   where   expenditure,   even   if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring  benefit may break down. It is not every advantage of enduring nature, acquired by an assessee that brings the case within the principle laid down in this test.  What   is  material   to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field   that   the   expenditure   would   be   disallowable   on   an application of this test. If the advantage consists merely in   facilitating   the   assessee’s   trading   operations   or enabling  the  management and conduct of  the  assessee’s business   to   be   carried   on   more   efficiently   or   more profitably while leaving the fixed capital untouched, the expenditure  would  be  on  revenue  account,  even  though the  advantage  may  endure   for  an   indefinite   future.  The test   of   enduring   benefit   is   therefore   not   a   certain   or conclusive   test   and   it   cannot   be   applied   blindly   and mechanically   without   regard   to   the   particular   facts   and circumstances of a given case. …..

xxx xxx xxx

11.   …..   “What   is   an   outgoing   of   capital   and   what   is   an outgoing   on   account   of   revenue   depends   on   what   the expenditure   is   calculated   to   effect   from   a   practical   and business   point   of   view   rather   than   upon   the   juristic classification of the legal rights, if any, secured, employed or exhausted is the process.” The   question   must   be   viewed   in   the   larger   context   of business necessity or expediency. …..”

(emphasis supplied)

9. A priori, we are of the considered opinion that the analysis done by the ITAT and the conclusion arrived at in respect of the subject claim of the appellant being the correct approach consistent with the exposition of this Court, needs to be upheld.  In our opinion, the High Court   missed   the   relevant   aspects   of   the   analysis   of   the   ITAT concerning the fact situation of the present case. As a matter of fact, the High Court has not even adverted to the aforementioned reported decisions, much less its usefulness in the present case.

10. Thelearned ASG appearing for the department had faintly argued that since the appellant in its return had taken a conscious explicit plea with regard to the part of the claim being ascribable to capital expenditure and partly to revenue expenditure, it was not open for the appellant to plead for the first time before the ITAT that the entire claim must be treated as revenue expenditure.   Further, it was not open to the ITAT to entertain such fresh claim for the first time.  This submission needs to be stated to be rejected.  In the first place, the ITAT was conscious about the fact that this claim was set up by the appellant for the first time before it, and was clearly inconsistent and contrary to the stand taken in the return filed by the appellant for the concerned assessment year including the notings made by the officials of the appellant.  Yet, the ITAT entertained the claim as permissible, even though for the first time before the ITAT, in appeal under Section 254   of   the   1961   Act,   by   relying   on   the   dictum   of   this   Court   in National   Therma Power   Co. Ltd.9.   Further, the ITAT has  also expressly recorded the no objection given by the representative of the department, allowing the appellant to set up the fresh claim to treat  the   amount   declared   as   capital   expenditure   in   the   returns   (as originally filed), as revenue expenditure.   As a result, the objection now taken by the department cannot be countenanced.

11. Learned ASG had placed reliance on the decision of this Court in Goetze (India) Ltd. vs. Commissioner of Income Tax10 in support of the objection pressed before us that it is not open to entertain fresh claim before the ITAT.   According to him, the decision in  National Thermal  Power  Co.  Ltd.11 merely permits raising of a new ground concerning the claim already mentioned in the returns and not an inconsistent or contrary plea or a new claim.  We are not impressed by this argument.  For, the observations in the decision in Goetze (India) Ltd.12itself make it amply clear that such limitation would apply to the “assessing authority”, but not impinge upon the plenary powers of the ITAT bestowed under Section 254 of the Act.  In other words, this decision is of no avail to the department.

12. Learned   counsel   for   the   department   had   also   relied   on   the decision of this Court in  Assistant  Commissioner  of   Income  Tax, Vadodara   vs.   Elecon   Engineering   Company   Limited13.     This  decision is on the question of application of Section 43A of the 1961 Act.  Accordingly, the exposition in this decision will be of no avail to the fact situation of the present case.  For, we have already noticed that   the   appellant   had   not   acquired   any   asset   from   any   country outside India for the purpose of his business.

13. In   view   of   the   above,   this   appeal   ought   to   succeed.     The impugned judgment and order of the High Court needs to be set aside and instead, the decision of the ITAT dated 3.6.2004 in favour of the appellant on the two questions examined by the High Court in the impugned judgment, needs to be affirmed and restored.   We order accordingly.

14. As a result of allowing the entire claim of the appellant to the tune of Rs.3,56,57,727/­ being revenue expenditure, suitable amends will have to be effected in the final assessment order passed by the assessing officer for the concerned assessment year, thereby treating the   consequential   benefits   such   as   depreciation   availed   by   the appellant­assessee in relation to the stated amount towards exchange fluctuation   related   to   leased   assets   capitalised   (being Rs.2,46,04,418/­), as unavailable and non­est.

12

15. The appeal is allowed in the above terms with no order as to costs.

16. Pending interlocutory applications, if any, stand disposed of.

..……………………………J.

       (A.M. Khanwilkar)

………………………………J.

       (Abhay S. Oka)

………………………………J.

       (C.T. Ravikumar)

New Delhi;

April 12, 2022.

ITEM NO.104          COURT NO.3          SECTION IV-A

 S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 6677/2008

WIPRO FINANCE LTD.                   Appellant(s)

VERSUS

COMMISSIONER OF INCOME TAX    Respondent(s)

WITH

SLP(C) No. 9274/2009 (IV-A)

 C.A. No. 2666/2011 (IV-A)

 C.A. No. 7906/2009 (IV-A)

 C.A. No. 2696/2010 (IV-A)

Date : 12-04-2022 These matters were called on for hearing today.

CORAM :

 HON’BLE MR. JUSTICE A.M. KHANWILKAR

 HON’BLE MR. JUSTICE ABHAY S. OKA

 HON’BLE MR. JUSTICE C.T. RAVIKUMAR

For Parties: Mr. S. Ganesh, Sr. Adv.

Mr. Tejveer Bhatia, Adv.

Mr. K.R. Pradeep, Adv.

Mr.Rohan Swarup, Adv.

Mr. Gaurav Sharma, Adv.

Mr. Abhinav Mukerji, AOR

Ms. Archana Sahadeva, Adv.

Ms. Pragati Agrawal, Adv.

Mr. Vikramjit Banerjee, Adv.

Mr. Arijit Prasad, Sr. Adv.

Mr. Shailesh Madiyal, Adv.

Mr. Siddhartah Sinha, Adv.

Mr. Jauhri Prakash, Adv.

Mr. Tathagat, Adv.

Mr. Nring C. Zehiang, Adv.

Mr. Abhishek Mahajan, Adv.

Mr. Prashant Rawat, Adv.

Mr. O.P. Shukla, Adv.

Mr. Kumar shashank, Adv.

Mr. Raj Bahadur Yadav, AOR

Mr. Preetesh Kapur, Sr. Adv.

Mr. Senthil Jagadeesan, AOR

Ms. Sonakshi Malhan, Adv.

 UPON hearing the counsel the Court made the following  O R D E R

Civil Appeal No. 6677/2008

The appeal is allowed in terms of the signed reportable order.

Pending applications, if any, shall stand disposed of.

SLP(C) No. 9274/2009, C.A. Nos. 2666/2011, 7906/2009 and 2696/2010.

__________________________

It is agreed that these matters involve different questions than the leading case (C.A.No.6677/2008), listed today. Hence, de-linked. List these matters next week.

(NEETU KHAJURIA)

COURT MASTER

(VIDYA NEGI)

COURT MASTER

(Signed reportable order in  C.A. No.6677/2008 is placed on the file.)