2011 (5) TMI 429 - HC - Income Tax

Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that surplus of Rs 58,32,100/- is not taxable in the assessee s total income - Mr. Gupta submitted that both CIT (A) and the Tribunal had set aside the addition of surplus sum on three grounds First, that the principal sum of 18,21,721/- was kept on capital account i.e., was a capital asset. Second, the money lay unutilized in a fixed deposit and hence, was not used for business purposes. Third, that profit or loss would arise on account of appreciation or depreciation in the value of foreign currency only when, there was actual conversion of foreign currency. Since no such conversion took place, the surplus crystallized was a notional sum, which could not be brought to tax in the assessment year in issue - thus obvious that the issue of taxability did not arise in the year in issue. However, whether it arose in the subsequent assessment year is an aspect which the Tribunal will have to examine and if necessary issue appropriate directions in that regard - The Tribunal shall in this regard pass an appropriate orders including, if it is felt necessary, remand the matter to the Assessing Officer.

Issues Involved:
1. Taxability of surplus amount received by the assessee.
2. Classification of the principal amount as capital or revenue.
3. Application of foreign exchange fluctuation rules.
4. Timing and assessment year of taxability.
5. Tribunal's findings and their correctness.

Detailed Analysis:

1. Taxability of Surplus Amount:
The primary issue was whether the surplus amount of Rs. 58,32,100/- received by the assessee should be included in its total income for the assessment year 1977-78. The Tribunal had ruled that this surplus was not taxable, which was challenged by the Revenue.

2. Classification of Principal Amount:
The assessee had entered into an agreement for the sale of its cement factories, and the payment was to be made in cash or kind. Due to wars between India and Pakistan, the agreement was not honored, leading to arbitration. The assessee received a sum of lb35,49,634/- which included the principal amount of lb18,21,721/-. The Assessing Officer considered the surplus arising from the conversion of this principal amount into Indian Rupees as taxable. However, the CIT(A) and the Tribunal held that the principal amount was on capital account and thus, any appreciation in its value due to foreign exchange fluctuation was also capital in nature.

3. Foreign Exchange Fluctuation Rules:
The Revenue had issued a show cause notice proposing to apply the unamended Rule 115 of the Income Tax Rules, 1962 for converting the interest income received in foreign currency. This was challenged by the assessee and the court held that the unamended rule could not be applied. The Assessing Officer applied the amended Rule 115, calculating the surplus due to foreign exchange fluctuation and adding it to the assessee's income. The Tribunal and CIT(A) disagreed, stating that the principal amount was capital and not subject to tax on account of exchange rate fluctuations.

4. Timing and Assessment Year of Taxability:
The Tribunal held that any profit or loss due to foreign exchange fluctuation could only be taxed when there was an actual conversion of the foreign currency. Since the conversion took place in the subsequent assessment year, the Tribunal ruled that the surplus could not be taxed in the assessment year 1977-78. The Revenue argued that the litigation had concluded in the subsequent year, and thus, the surplus should be considered in the succeeding assessment years.

5. Tribunal's Findings and Their Correctness:
The Tribunal's findings were challenged on the grounds that the principal amount was not immobilized and could have been used for business purposes. The court found that the Tribunal's reasoning that the principal amount was held on capital account was flawed. The court also noted that the actual conversion of the foreign currency took place in the subsequent year, meaning the surplus could not be taxed in the assessment year in question.

Conclusion:
The court concluded that the surplus amount could not be taxed in the assessment year 1977-78 as the conversion of foreign currency and realization of profit occurred in the subsequent year. The matter was remanded to the Tribunal to ascertain if any profit was earned upon remittance of the proceeds to India and to determine the appropriate assessment year for taxation. The Tribunal was directed to pass appropriate orders, including remanding the matter to the Assessing Officer if necessary.

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