Pune Tribunal upholds tax deductibility of MTM exchange fluctuation loss on forex loan borrowed to reduce interest cost and hedge export receivables

Similar documents
Bombay HC upholds non-taxability of deferred consideration on transfer of shares in the absence of accrual

EY Tax Alert. Executive summary. Chennai Tribunal upholds salary taxation of SARs benefits received from foreign parent of employer.

EY Tax Alert. Executive summary. Supreme Court rules on year of deductibility of debenture interest paid upfront. 26 March 2015

Indian Equalization Levy on digital services to be effective from 1 June 2016, administrative rules notified

Delhi Tribunal rules income of non-resident that is not attributable to PE in India shall still be taxable in India as FTS

Mumbai Tribunal rules reimbursement of expenses on secondment of employees not FTS

Supreme Court rules accumulated losses of amalgamating company to be set off after reducing interest waiver benefit

EY Tax Alert. Executive summary

EY India Defence EY s point of view on amended Foreign Direct Investment (FDI) Policy on Defence Sector

EY Tax Alert. Executive summary. SC settles certain controversies on profit-linked deduction for export units. 21 December 2016

EY Tax Alert. Executive summary. Bangalore Tribunal rules on deductibility of employee share reward discount cross-charged by foreign parent company

AAR rules that provision of business support services to US affiliate are naturally bundled and are not intermediary services

EY Tax Alert Indian tax administration issues final rules on certain aspects for determining buy-back tax in India Executive summary

EY Tax Alert. Executive summary. CBDT provides clarifications on Direct Tax Dispute Resolution Scheme, September 2016

Government of India amends Income Computation and Disclosure Standards and also defers them by one year to tax year

CBDT releases fifth round of FAQs on Income Declaration Scheme, 2016

EY Regulatory Alert. Executive summary. SEBI releases Discussion Paper on review of framework for Institutional Trading

CBDT introduces form for employee investment declarations and extends due date for quarterly withholding statements

EY Tax Alert. Executive summary. Mumbai Tribunal rules on legality and taxability of certain gift transactions by corporates.

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

Guidance Note on FATCA and CRS dated 30 November Key clarifications

Operational, prudential and reporting norms for Alternative Investment Funds. Executive summary

Mumbai Tribunal rules charterer includes slot charter arrangement for availing treaty benefit under Article 8 of India Malaysia DTAA

Amendments to the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, Executive summary

EY India Real Estate EY s point of view on Amended Foreign Direct Investment (FDI) Policy on Construction Development Sector

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary. Mumbai Tribunal rules write-down of investment loss allowable if a direct and proximate nexus exists with a business

EY Tax Alert. Executive summary. Delhi Tribunal rules on advertisement and promotion expenses involving use of trademarks as not royalty.

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary. Delhi HC rules payment towards live telecast is not royalty. 1 December 2014

EY Tax Alert. Executive summary

CBDT releases second round of FAQs on Income Declaration Scheme, 2016

CBDT amends rules relating to furnishing information in respect of payments to nonresidents

EY Tax Alert. Executive summary. CBDT sets up a Committee to deal with retroactive indirect transfer taxation. 1 September 2014

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

Mumbai Tribunal rules on DAPE in case of marketing and distribution activities carried out by an Indian branch for group companies

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary. CBDT notifies guidelines for onshore management of offshore funds. 17 March 2016

EY Tax Alert. Executive summary. Supreme Court upholds initiation of prosecution for failure to file return. 3 February 2014

CBDT revises rules relating to furnishing information in respect of payments to nonresidents

Reserve Bank of India releases draft guidelines for on tap licensing of Universal Banks in the private sector

EY Tax Alert. J&K HC rules that contract receipts of a JV result in diversion of income to JV members; receipt not an income of the JV

EY Tax Alert. Supreme Court upholds lease equalization adjustment in finance lease as per the ICAI Guidance Note for tax purposes.

Reserve Bank of India releases final guidelines for on tap licensing of Universal Banks in the private sector

EY Tax Alert. Executive summary. CBDT notifies ITR Forms for Company/ Firms/ LLP/ Trusts and others. 05 August 2015 October 2014

EY Regulatory Alert. Executive summary

EY Regulatory Alert. Executive summary

Kerala HC upholds the constitutional validity of levy of Service tax on admission and access to entertainment event & amusement facilities

Karnataka High Court rules that implementation of customized software is a service and cannot be subject to VAT

EY Tax Alert. Executive summary. Third Protocol amending the India-Singapore tax treaty signed. 31 December 2016

EY Tax Alert. Executive summary. Kolkata Tribunal rules on taxability of online advertisement revenues. 18 April mber 2012

EY Tax Alert. Executive summary

CBDT Committee recommends MAT framework for Ind-AS companies

Indian Administration issues draft Exit Tax Rules for charitable organisations; invites comments from stakeholders

MoF issues Notifications and Circular for services relating to transportation of goods by vessel

EY Tax Alert. Executive summary. Hyderabad Tribunal reaffirms the distinction between use of copyright right and copyrighted article.

EY Tax Alert. Executive summary. Supreme Court rules on scope of statutory dues allowable as deduction on actual payment.

Securities and Exchange Board of India notifies regulations for Share Based Employee Benefits

Special Bench rules ESOP discount is deductible on vesting of options

EY Tax Alert. Executive summary

Securities and Exchange Board of India and the Reserve Bank of India issue guidelines for international financial services centres

EY Tax Alert. Executive summary. Government of India notifies the entities eligible to issue tax free bonds for financial year

EY Tax Alert Delhi High Court upholds weighted R&D deduction for recognized inhouse R&D facility from the date prior to recognition and approval

EY Tax Alert. Executive summary. Protocol signed on 10 May 2016 to amend the 1982 India- Mauritius tax treaty. 12 May 2016

EY Tax Alert. Delhi Tribunal rules guarantee fee income received by foreign parent from Indian subsidiary is taxable in India.

EY Tax Alert. Executive summary. CBDT modifies returns forms for tax year May mber 2012

EY Tax Alert. Supreme Court reaffirms constitutional validity of Aadhaar PAN linking requirement. Executive summary

High Court rules that in-transit sale in turnkey contracts not eligible for exemption under Section 6(2) of the Central Sales Tax Act

EY PAS Alert. Finance bill proposes tax on long-term gains arising on sale of listed equity shares Impact on employee stock option plans

EY Regulatory Alert. Executive summary. ECB Policy- revised framework. 04 December 2015

EY Tax Alert. Mumbai Tribunal rules conversion of compulsory convertible preference shares into equity shares is not transfer.

Transfer pricing for Specified Domestic Transactions

Background. Facts. produce articles or things or completes. substantial expansion.

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

Amendments at enactment stage of Finance Bill, 2017

EY Alert. Kerala High Court quashes 2014 notification amending the Employees Pension Scheme, 1995

EY Tax Alert. Supreme Court negates claim for 100% deduction for fresh five years of new units undertaking substantial expansion.

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary. CBDT notifies GAAR rules. Background. 27 September mber 2012

EY Tax Alert. Central Government modifies conditions for availing exemption from angel tax provision. Executive summary

HC denies refund of SAD paid on import of coil sheets sold after corrugation as proflex roof

CBEC issues Circulars laying down procedure for investigation of related party import cases by Special Valuation Branch of Customs

EY Tax Alert. Executive summary

EY Tax Alert. Executive summary

10 April EY Tax Alert. AAR treats buyback of shares as tax avoidance scheme taxable as dividend under Mauritius DTAA

EY Tax Alert Bangalore Tribunal rules on constitution of service PE for services rendered virtually as well as physically

EY Regulatory Alert (M&A perspective)

EY Tax Alert. Executive summary. Supreme Court rules on characterization of property rental income as income from house property.

EY Tax Alert Central Board of Direct Taxes issues final rules prescribing methodology for determining fair market value of unquoted shares

Transcription:

19 May 2016 EY Tax Alert Pune Tribunal upholds tax deductibility of MTM exchange fluctuation loss on forex loan borrowed to reduce interest cost and hedge export receivables Executive summary Tax Alerts cover significant tax news, developments and changes in legislation that affect Indian businesses. They act as technical summaries to keep you on top of the latest tax issues. For more information, please contact your EY advisor. This Tax Alert summarizes a recent ruling of the Pune Income Tax Appellate Tribunal (Tribunal) in the case of Cooper Corporation Pvt. Ltd. [1] (Taxpayer) on the issue of tax deductibility of marked-to-market (MTM) exchange fluctuation loss on foreign currency loan borrowed to repay earlier rupee loans with a view to reduce interest cost and hedge export receivables. The Tribunal noted that, as per the settled law under Indian tax jurisprudence, exchange fluctuation loss on revenue item is deductible for tax purposes, though exchange fluctuation loss on capital item is not deductible. The Tribunal allowed the deduction of MTM loss on the ground that such loss has direct nexus to saving in interest-costs which is a revenue item. The Tribunal further held that MTM loss being recognized in books of account, under the mandate of accounting standard notified under Companies Act as per the mercantile system of accounting, cannot be regarded as notional or contingent loss. [1] [TS-265-ITAT-2016 (PUN)]

Background Accounting Standard 11 (AS-11) issued by Institute of Chartered Accountants of India (ICAI) and notified as one of the mandatory accounting standards under Companies Act requires outstanding foreign currency monetary items at year end to be translated into Indian rupees by applying the foreign exchange rate as on the closing day of reporting period and the net exchange difference resulting on such translation is required to be recognized as income or expense in Profit & Loss account for the respective financial period. However, for tax purposes, as per the law settled by Indian tax jurisprudence, exchange fluctuation loss on revenue item is deductible for tax purposes but loss on capital item is not deductible. As a corollary, exchange fluctuation gain on revenue item is taxable and gain on capital item is not taxable. While the above is the general principle, by way of an exception, Section 43A of the Indian Tax Laws (ITL) requires exchange fluctuation loss/gain on liability relating to or loan borrowed for acquiring capital asset from country outside India to be capitalized to the cost of such asset. But, pursuant to the amendment made with effect from tax year 2002-03, such capitalization is permitted with reference to loss/gain at the time of actual repayment and not on MTM basis. This provision has its origin to the devaluation of Indian rupee made in 1966 which, but for this provision, would have resulted in sunk cost for many Indian taxpayers which had borrowed loans in foreign currency for acquiring imported capital assets. ICDS VI, relating to the effects of changes in foreign exchange rates, on lines of AS-11, requires outstanding foreign currency monetary items to be translated at closing rate at year end and resulting exchange differences to be recognized as income or expense but subject to the provisions of Section 43A. Facts of the case The Taxpayer is a private limited company engaged mainly in foundry and manufacturing business. The Taxpayer had borrowed loans in Indian rupees for the purposes of acquiring capital assets in India. These loans carried interest rates ranging from 12% to 14% per annum. In order to save on interest costs, the Taxpayer converted these loans into forex loans with lower interest rates ranging from 6% to 7% per annum but the forex loans carried risk of exchange fluctuation loss/gain. The forex loan also acted as a hedge against export receivables in foreign currency. For tax year 2007-08, the Taxpayer booked an MTM loss on INR10.20M on restatement of outstanding forex loans at year end as per AS-11 and claimed the same as revenue deduction for tax purposes. The Tax Authority disallowed the loss on two grounds viz. (a) such MTM loss was notional and contingent in nature and (b) the loss was relatable to capital item and, hence, not allowable for tax purposes. The Tax Authority relied on the provisions of Section 43A for this purpose. The ITL permits Central Government to notify income computation and disclosure standards (ICDS) to be followed by taxpayers for the purpose of computing taxable income. Pursuant to this provision, the Central Government notified 10 ICDS on 31 March 2015 effective from tax year 2015-16 onwards which substituted two erstwhile standards which were notified in 1996. The First Appellate Authority upheld the Tax Authority s action. Being aggrieved, the Taxpayer filed further appeal before the Tribunal.

Issue before the Tribunal Whether MTM exchange fluctuation loss on foreign currency loan borrowed to repay earlier rupee loans with a view to reduce interest cost is allowable for tax purposes? Tribunal ruling The Tribunal ruled in favor of the Taxpayer and held that such loss was allowable as revenue deduction for following reasons: It is not disputed that forex loans were borrowed to convert existing rupee loans with a view to reduce interest cost. There is also no dispute that the capital assets acquired from rupee loans were already put to use. Hence, the forex loss is a post facto event subsequent to capital assets having been put to use. Further, the profits/gains from the business have been admittedly computed in accordance with the generally accepted accounting practices and the extant ICDS. The ITL requires the Taxpayer to adopt either cash or mercantile basis of accounting. The Taxpayer having adopted mercantile basis of accounting was obliged to adopt AS-11 under Companies Act and ICDS notified by Central Government under the ITL. Both AS-11 and ICDS VI [2] require MTM restatement difference on foreign currency monetary items to be recognized as income or expense. AS-11 is a mandatory accounting standard notified under Companies Act which the Taxpayer is bound to follow. The Supreme Court (SC) ruling in the case of CIT v. Woodward Governor India (P) Ltd. [3] supports that MTM loss recognized in compliance with the mandatory accounting standard cannot be regarded notional or contingent loss. It represents accrued liability as at year end. Section 43A is not applicable in the present case since forex loan has not been utilized for acquiring imported assets. Section 43A gets triggered only if the capital assets are imported assets. It does not apply to acquisition of indigenous assets. The definition of actual cost for depreciable assets under the ITL also does not require adjustment of forex loss/gain to the cost of the asset. This is supported by the SC ruling in the case of CIT v. Tata Iron and Steel Co Ltd. [4] in which the SC held that cost of asset and cost of raising money for purchase of asset are two different and independent transactions. The manner of repayment of forex loan does not affect the cost of the asset. It is true that the SC in the case of Sutlej Cotton Mills Ltd. v. CIT [5] held that any profit or loss which arises to a taxpayer on account of depreciation in foreign currency would be ordinary trading loss if the foreign currency held by the taxpayer is on revenue account. However, if the foreign currency is held as a capital asset, the loss would be capital in nature. The aforesaid principle is not applicable to the Taxpayer s case since fluctuation loss inflicted upon the Taxpayer bears no nexus or relation to the acquisition of capital assets. The forex loan was borrowed to save interest cost and consequently to augment the profitability or reduce revenue losses of the Taxpayer. The impugned loss, therefore, has a direct nexus to the savings in interest costs without bringing any new capital asset into existence. The fact that the forex loan served as a hedging mechanism against revenue receipts from exports also portrays the commercial expediency. [2] Effective from tax year 2015-16 [3] (2009) 312 ITR 254] [4] [(1998) 231 ITR 285] [5] [(1979) 116 ITR 1]

Comments While the principle of characterization of exchange fluctuation difference based on nature of underlying item is well settled under tax jurisprudence, the application of the principles to facts of a particular case do typically pose challenges. In the present case, the Tribunal leaned in favour of revenue characterization having regard to the fact that forex loans were borrowed to reduce the interest cost on rupee loans and to act as hedge against export receivables. The Tribunal also noted that the forex loan in the present case had a direct nexus with savings in interest cost which augment profitability and the hedge against export receivables also portrayed commercial expediency.

Our offices Ahmedabad 2nd floor, Shivalik Ishaan Near. C.N Vidhyalaya Ambawadi, Ahmedabad 380 015 Tel: + 91 79 6608 3800 Fax: + 91 79 6608 3900 Bengaluru 6th, 12th & 13th floor U B City Canberra Block No.24, Vittal Mallya Road Bengaluru 560 001 Tel: + 91 80 4027 5000 + 91 80 6727 5000 Fax: + 91 80 2210 6000 + 91 80 2224 0695 Prestige Emerald, No. 4, 1st Floor, Madras Bank Road, Lavelle Road Junction, Bangalore - 560001 Chandigarh 1st Floor SCO: 166-167 Sectr 9-C, Madhya Marg Chandigarh 160 009 Tel: + 91 172 671 7800 Fax: + 91 172 671 7888 Chennai Tidel Park, 6th & 7th Floor A Block (Module 601,701-702) No.4, Rajiv Gandhi Salai Taramani Chennai 600 113 Tel: + 91 44 6654 8100 Fax: + 91 44 2254 0120 Hyderabad Oval Office 18, ilabs Centre, Hitech City, Madhapur, Hyderabad 500 081 Tel: + 91 40 6736 2000 Fax: + 91 40 6736 2200 Kochi 9th Floor ABAD Nucleus NH-49, Maradu PO, Kochi 682 304 Tel: + 91 484 304 4000 Fax: + 91 484 270 5393 Mumbai 14th Floor, The Ruby 29 Senapati Bapat Marg Dadar (west) Mumbai 400 028 Tel + 91 22 6192 0000 Fax + 91 22 6192 1000 5th Floor Block B-2, Nirlon Knowledge Park Off. Western Express Highway Goregaon (E) Mumbai 400 063 Tel: + 91 22 6192 0000 Fax: + 91 22 6192 3000 NCR Golf View Corporate Tower B Near DLF Golf Course, Sector 42 Gurgaon 122 002 Tel: + 91 124 464 4000 Fax: + 91 124 464 4050 3rd & 6th Floor, Worldmark-1 IGI Airport Hospitality District Aerocity, New Delhi-110037, India Tel: +91 11 6671 8000 Fax: +91 11 6671 9999 4th & 5th Floor, Plot No 2B, Tower 2, Sector 126, Noida 201 304 Gautam Budh Nagar, U.P. India Tel: + 91 120 671 7000 Fax: + 91 120 671 7171 Pune C 401, 4th floor Panchshil Tech Park Yerwada (Near Don Bosco School) Pune 411 006 Tel: + 91 20 6603 6000 Fax: + 91 20 6601 5900 Ernst & Young LLP EY Assurance Tax Transactions Advisory About EY EY is a global leader in assurance, tax, transaction and advisory services. The insights and quality services we deliver help build trust and confidence in the capital markets and in economies the world over. We develop outstanding leaders who team to deliver on our promises to all of our stakeholders. In so doing, we play a critical role in building a better working world for our people, for our clients and for our communities. EY refers to the global organization and may refer to one or more of the member firms of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients. For more information about our organization, please visit ey.com. Ernst & Young LLP is one of the Indian client serving member firms of EYGM Limited. For more information about our organization, please visit www.ey.com/in. Ernst & Young LLP is a Limited Liability Partnership, registered under the Limited Liability Partnership Act, 2008 in India, having its registered office at 22 Camac Street, 3rd Floor, Block C, Kolkata 700016. 2016 Ernst & Young LLP. Published in India. All Rights Reserved. ED None This publication contains information in summary form and is therefore intended for general guidance only. It is not intended to be a substitute for detailed research or the exercise of professional judgment. Neither Ernst & Young LLP nor any other member of the global Ernst & Young organization can accept any responsibility for loss occasioned to any person acting or refraining from action as a result of any material in this publication. On any specific matter, reference should be made to the appropriate advisor. Kolkata 22, Camac Street 3rd Floor, Block C Kolkata 700 016 Tel: + 91 33 6615 3400 Fax: + 91 33 2281 7750 EY refers to global organization, and/or one or more of the independent member firms of Ernst & Young Global Limited Join India Tax Insights from EY on