2004 (5) TMI 62 - AAR - Income Tax

Applicant a company incorporated in Switzerland proposes to open a branch office in India for dealing in green coffee - applicant have to stock huge inventory of green coffee for most part of the year in view of Board s Circular No. 23D of September 12 1960 held that forward transactions in respect of stock in which the applicant deals will be in the nature of hedging contracts further hedging contracts need not be of the identical quality/quantity of the goods held in stock.

Issues Involved:

1. Whether hedging in respect of stock will be covered by clause (a) of the proviso to section 43(5) of the Income-tax Act, 1961.
2. Whether the existence of a contract of sale of stock in trade is a condition precedent to attract clause (a) of the proviso to section 43(5) of the Act.
3. Whether the words "a contract in respect of merchandise" cover both forward purchase and forward sale transactions under clause (a) of the proviso to section 43(5).
4. Whether the hedging transaction should be of the same quality/quantity of goods as are held in stock under clause (a) of the proviso to section 43(5).

Issue-wise Detailed Analysis:

1. Hedging in respect of stock under clause (a) of the proviso to section 43(5):

The applicant, a Swiss company dealing in 'Green Coffee', sought a ruling on whether its hedging transactions would be covered under clause (a) of the proviso to section 43(5) of the Income-tax Act, 1961. The applicant's counsel argued that the hedging transactions, aimed at guarding against price fluctuations, should not be considered speculative transactions. They referenced section 43(5) and Central Board of Revenue Circular No.23D, which states that bona fide forward sales entered into to guard against the risk of raw materials or merchandise falling in value should not be treated as speculative losses. The Gujarat High Court in Pankaj Oil Mills Vs. CIT upheld this view, stating that hedging transactions need not be restricted to purchase contracts only.

2. Existence of contract of sale as a condition precedent:

The Director of International Taxation argued that the applicant's interpretation was incorrect, asserting that the contract for sale should precede the hedging transaction. He cited several high court judgments, including Raghunath Dass Prahlad Das v. CIT, which held that the benefit of a hedging contract could not be claimed unless there was an existing contract likely to suffer loss due to future price fluctuations. The applicant's counsel countered that the Gujarat High Court in Pankaj Oil Mills Vs. CIT had a differing opinion, stating that the total of hedging transactions should not exceed the total stock of merchandise, and the transactions should be within a reasonable time frame.

3. Coverage of forward purchase and sale transactions:

The applicant's counsel argued that both forward purchase and sale transactions should be covered under clause (a) of the proviso to section 43(5), referencing the Board's Circular No.23D, which includes bona fide forward sales as genuine hedging transactions. The Director of International Taxation disagreed, citing the Supreme Court's affirmation in S.K. AR. K. AR. Somasunderam Chettiar & Co. that only contracts of purchases could be covered under hedging transactions. The applicant's counsel maintained that the Board's Circular, being a benevolent circular, should be binding on the authorities, as supported by the Supreme Court in UCO Bank vs. CIT.

4. Quality/quantity of goods in hedging transactions:

The Director commented that hedging transactions could be in connected commodities, not necessarily the same commodity, as long as they were genuine. However, the Andhra Pradesh High Court in M.G. Bros. v. CIT held that there must be adequate stock of raw materials to the extent of the forward transaction. The applicant's counsel argued that the applicant's hedging transactions in 'green coffee' would be genuine, as they would be in the same line of business.

Judgment:

The ruling concluded that the applicant's forward transactions in respect of stock would be in the nature of hedging contracts as per the Board's Circular No.23D. The existence of a contract of sale is a condition precedent to attract clause (a) of the proviso to section 43(5), but this condition is relaxed by the Circular. Forward sale transactions are covered within the extended meaning given in the Circular, and the hedging contracts need not be of the identical quality/quantity of the goods held in stock.

Pronouncement:

The Authority delivered the ruling on May 31, 2004.

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