2020 (10) TMI 100 - HC - Income Tax

Loss incurred on foreign exchange derivative - Addition as speculative loss - HELD THAT - As decided in M/s.Celebrity Fashion Ltd. 2020 (9) TMI 1022 - MADRAS HIGH COURT loss incurred on account of cancellation of forward contracts was not speculative losses falling within the provisions of Section 43(5). Tribunal was right in its finding that the loss incurred on foreign exchange derivative cannot be disallowed holding it to be a speculative loss. In any event, the Tribunal remanded the matter to the AO for a limited purpose, which has been clearly indicated in paragraph 7 of the impugned order. For the foregoing reasons, we find no ground to interfere with the impugned order passed by the Tribunal. - Decided against revenue.

Summary

Issues involved:
1. Classification of derivative transactions as business loss or speculative loss under Section 43(5) of the Income Tax Act.
2. Recognition of forex derivative transactions conducted through a banker as Over the Counter Transactions under Proviso (d) to Section 43(5).
3. Determination of structured derivative contracts as incidental to the assessee's business.
4. Assessment of derivative transactions in USD/Swiss franc combination when no transactions in Swiss franc occurred.

Issue 1: Classification of derivative transactions
The appeal raised questions regarding the classification of derivative transactions as business loss or speculative loss under Section 43(5) of the Income Tax Act. The Revenue contended that the loss on derivative transactions should be considered as speculative loss due to the absence of actual delivery, falling within the definition of speculative transaction. The Assessing Officer disallowed the business loss claimed by the assessee, treating it as speculative loss. However, the Tribunal referred to relevant legal precedents and held that the nature of the underlying transaction determines the classification of derivative transactions. If the underlying transaction is capital in nature, the derivative transaction would also be capital. The Tribunal emphasized the need to ascertain whether the derivative transactions were related to capital or revenue items for appropriate classification.

Issue 2: Recognition of forex derivative transactions
Another issue raised was the recognition of forex derivative transactions conducted through a banker as Over the Counter Transactions under Proviso (d) to Section 43(5). The Tribunal examined whether the preconditions laid by the Explanation to the Proviso were satisfied to constitute the transactions as eligible. It was highlighted that the nature of the underlying transaction, in this case, foreign exchange, played a crucial role in determining the classification of the derivative transactions. The Tribunal emphasized the importance of establishing the correlation between the derivative transactions and the underlying transactions for accurate assessment.

Issue 3: Determination of structured derivative contracts
The Tribunal also deliberated on whether the structured derivative contracts were incidental to the assessee's business. It was noted that the correlation to specific export bills and the maturity of the hedge with the underlying transactions were essential factors to establish the incidental nature of the derivative transactions to the business. The Tribunal emphasized the need for clear evidence to support the claim that the derivative transactions were incidental to the assessee's business activities.

Issue 4: Assessment of derivative transactions in USD/Swiss franc combination
Lastly, the issue of assessing derivative transactions in USD/Swiss franc combination when no transactions in Swiss franc occurred was raised. The Tribunal examined whether the derivative transactions in currencies where no actual transactions took place were legitimately incidental to the assessee's business. The lack of transactions in Swiss franc raised questions about the validity of the derivative transactions in that currency. The Tribunal highlighted the importance of genuine business correlations to support the classification of derivative transactions as incidental to the business.

In conclusion, the High Court dismissed the appeal, affirming the Tribunal's decision regarding the classification of derivative transactions and emphasizing the need for a thorough examination of the nature and correlation of transactions to determine the appropriate classification under the Income Tax Act.