2019 (5) TMI 633 - HC - Income Tax

Deduction u/s 10B - allowability of loss due to exchange fluctuation - tribunal relied on decision which was reversed by supreme court - contingent and notional - allowability of claim of the appellant before CIT(A) when no such claim was made before the AO - HELD THAT - Matter deserves to be restored back to the learned Tribunal for considering the entire appeal filed by the Revenue de novo, in view of the subsequent development of law by the aforesaid judgment of the Hon'ble Supreme Court in the case of Oil Natural Gas Corporation Limited, 2010 (3) TMI 81 - SUPREME COURT , and also other case laws, which the Assessee may rely upon, for the purpose of 'Deduction' u/s 10B.

Summary

Issues involved:
1. Disallowance of Foreign Exchange Fluctuation Losses
2. Deduction under Section 10B of the Income Tax Act

Analysis:

Issue 1: Disallowance of Foreign Exchange Fluctuation Losses
The appellant filed an appeal under Section 260A of the Income Tax Act, challenging an order partly allowing the Revenue's appeal and setting aside the order in favor of the Assessee by the Commissioner of Income Tax (Appeals). The High Court admitted the appeal based on two substantial questions of law. The first question revolved around the Tribunal's decision on the claim made by the appellant before the Assessing Officer. The second question concerned the treatment of loss due to exchange fluctuation as contingent and notional, thus disallowing it as a deduction. The appellant's counsel argued that the Tribunal's reliance on a judgment by the Uttarakhand High Court was no longer valid as it was overturned by the Supreme Court in a subsequent case. Consequently, the High Court set aside the disallowance made by the Tribunal and restored the order in favor of the Assessee.

Issue 2: Deduction under Section 10B of the Income Tax Act
Regarding the deduction under Section 10B on export turnover, the appellant raised several issues related to the distribution of expenses between different divisions and the treatment of depreciation on software used in domestic sales. However, these questions were not admitted in the present appeal. The High Court observed that the matter deserved to be reconsidered by the Tribunal in light of subsequent legal developments, including the Supreme Court's judgment in another case. Consequently, the High Court allowed the appeal, set aside the Tribunal's order, and remanded the case back to the Tribunal for a fresh consideration in accordance with the law. Both parties were granted the opportunity to present their arguments before the Tribunal, with no costs imposed.

In conclusion, the High Court's judgment addressed the issues of disallowance of foreign exchange fluctuation losses and deduction under Section 10B of the Income Tax Act, setting aside the Tribunal's decision and remanding the case for further consideration based on relevant legal developments.