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2018 (9) TMI 528 - AT - Income TaxRevision u/s 263 - claim of deduction u/s 10B - Held that - We find that in the case of TEI Technologies P Ltd (2012 (9) TMI 47 - DELHI HIGH COURT) held that the stage of deduction u/s 10AA of the Act would be while computing the total income of the eligible unit under Chapter IV of the Act and not at the stage of computing income as per Chapter VI of the Act (which covers section 70 and 71 of the Act). CIT had also agreed to this proposition in his revision order passed u/s 263 of the Act and had directed the ld AO to grant deduction u/s 10AA of the Act accordingly. Hence we hold that the ld CIT himself in his order passed u/s 263 had admitted deduction u/s 10AA of the Act while computing the Gross total income under Chapter IV of the Act as has been claimed by the assessee company in its return of income and accepted by the ld AO in the course of assessment proceedings. Ground raised by the assessee is allowed. Foreign Exchange Fluctuation Loss - Held that - The assessee in the instant case had opted for one of the options given to it in para 46A of AS -11 issued by ICAI with regard to treatment of the said loss in its books. This is relevant only for the purpose of books and not for income tax purposes. In income tax proceedings, the assessee has been consistently claiming the said exchange fluctuation loss as a deduction. Hence even on the principle of consistency as has been held by the Hon ble Supreme Court in the case of Radhasaomi Satsang (1991 (11) TMI 2 - SUPREME COURT), the claim of exchange fluctuation loss deserves to be allowed, which was done by the ld AO. As in the case of Taparia Tools (2015 (3) TMI 853 - SUPREME COURT) had held that the entries in the books of accounts are not relevant for determination of income for income tax purposes. As far as income tax proceedings are concerned, there is no dispute that the assessee had been consistently claiming the said loss as a deduction in the past. Hence no error could be attributed in his order by the ld CIT in revisionary jurisdiction u/s 263 of the Act. Claim of deduction of Mark to Market Loss while computing the book profits u/s 115JB - Held that - the provisions of Section 115JB of the Act, being a self contained code in itself, which starts with a non-obstante clause, specifically provides for specific items of additions and deletions to net profit as profit and loss account in order to arrive at the book profits thereon. We hold that this provision for MTM losses does not fall under any of the items of additions mentioned in the said section. In the absence of any specific requirement by any of the clauses (a) to (k) of Explanation 1 of section 115JB of the Act, the provision for MTM losses not added back while computing the book profits u/s 115JB of the Act, is in order. When this has been allowed by the ld AO after due examination of the same with reference to the legal provision and settled legal principles thereon, no error could be attributed in the said order of the ld AO warranting revisionary jurisdiction u/s 263 of the Act - no case for invoking revisionary jurisdiction u/s 263 - Decided in favour of assessee
Issues Involved:
1. Justification of invoking revisionary jurisdiction under Section 263 of the Income Tax Act. 2. Deduction claim under Section 10B of the Income Tax Act. 3. Allowability of Foreign Exchange Fluctuation Loss. 4. Allowability of Mark to Market Loss on foreign currency swaps under Section 115JB of the Income Tax Act. Issue-Wise Detailed Analysis: 1. Justification of Invoking Revisionary Jurisdiction Under Section 263: The primary issue is whether the Principal Commissioner of Income Tax (CIT) was justified in invoking revisionary jurisdiction under Section 263 of the Income Tax Act. The CIT issued a show-cause notice to the assessee on grounds including Foreign Exchange Fluctuation Loss, Provision for Marked to Market Loss on foreign currency swaps, and Exemption under Section 10B of the Act. The CIT concluded that the Assessing Officer's (AO) order was erroneous and prejudicial to the interests of the revenue, thereby setting aside the AO’s order and restoring it for reconsideration. 2. Deduction Claim Under Section 10B of the Income Tax Act: The CIT initially questioned the exemption claimed under Section 10B by the assessee. However, it was clarified that the assessee claimed exemption under Section 10AA, not 10B, supported by Form No. 56F. The CIT, agreeing with the Supreme Court's decision in CIT vs. Yokogawa India Ltd, acknowledged that the deduction should be computed at the stage of gross total income under Chapter IV, not Chapter VI. Consequently, the CIT directed the AO to grant the deduction under Section 10AA as claimed by the assessee, thus resolving this issue in favor of the assessee. 3. Allowability of Foreign Exchange Fluctuation Loss: The assessee had availed External Commercial Borrowings (ECB) for purchasing assets in India and claimed a deduction for foreign exchange fluctuation loss as per Accounting Standard 11 (AS-11). The CIT contended that since the ECB was for capital assets, the fluctuation loss should be capitalized, not deducted. However, the Tribunal noted that the AO had thoroughly examined the allowability of this loss during the assessment, and the assessee had consistently claimed such losses in the past. The Tribunal held that the AO’s decision was based on proper enquiry and was not erroneous, thus rejecting the CIT’s invocation of Section 263 on this ground. 4. Allowability of Mark to Market Loss on Foreign Currency Swaps Under Section 115JB: The assessee made a provision for Mark to Market (MTM) losses on foreign currency swaps, which was not added back while computing book profits under Section 115JB. The CIT argued that MTM losses are contingent liabilities and should be added back. However, the Tribunal highlighted that the provision for MTM losses was made as per the mandatory accounting standards issued by ICAI and certified by statutory auditors, thus constituting an ascertained liability. The Tribunal emphasized that the AO had duly examined this issue during the assessment, and the provision did not fall under any specific items in Explanation 1 to Section 115JB. Therefore, the Tribunal concluded that the AO's order was neither erroneous nor prejudicial to the interests of the revenue, invalidating the CIT’s revisionary jurisdiction under Section 263. Conclusion: The Tribunal found that the CIT's invocation of revisionary jurisdiction under Section 263 was unjustified for all the issues raised. The AO had conducted appropriate enquiries and made decisions based on correct appreciation of facts and law. Consequently, the appeal of the assessee was allowed, and the CIT’s order under Section 263 was set aside.
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