2018 (1) TMI 938 - AT - Income Tax

Disallowance of business loss - trading of currency derivatives on recognized exchange - treating the same as speculation in nature - Held that - As decided in IVF Advertisers Pvt. 2015 (5) TMI 706 - ITAT MUMBA allowing the appeal, that derivatives include foreign currency. Call options or put options were transactions of derivative markets and could not be termed speculative in nature. Therefore, the loss claimed by the assessee on account of foreign currency futures was allowable. Addition being ROC fees were increased in share capital - Held that - It is not clear from the record as to whether increase in share capital was for enhancing the working capital or for some fixed capital investment. The AO has also not considered the alternative arguments of assessee with regard to deduction u/s.35D. In the interest of justice, restore this ground for file of AO for deciding afresh as per law. Disallowance u/s.14A - Held that - No disallowance can be made when there is no exempt income. See Cheminvest Limited vs. CIT 2015 (9) TMI 238 - DELHI HIGH COURT

Summary

Issues:
1. Treatment of business loss as speculation
2. Disallowance of ROC filing fees
3. Disallowance under section 14A

Analysis:

1. Treatment of business loss as speculation:
The assessee appealed against the order treating business loss as speculation on trading in currency derivatives. The Tribunal referred to a previous case where call options or put options in foreign currency futures were held to be non-speculative transactions. The Tribunal found that the assessee's transactions could not be treated as speculative. The appeal was allowed based on this precedent.

2. Disallowance of ROC filing fees:
The next issue pertained to the disallowance of ?7,00,000 as ROC filing fees for increasing share capital. The lower authorities disallowed the claim based on a Supreme Court ruling that such expenses are capital in nature. However, the Tribunal noted a case where disallowance was not applicable if the capital enhancement was for working capital. As the purpose of the capital increase was unclear, the Tribunal remanded the issue back to the AO for fresh consideration.

3. Disallowance under section 14A:
The final grievance related to disallowance under section 14A despite no exempt income during the year. Citing decisions by the Delhi High Court and Gujarat High Court, the Tribunal held that section 14A does not apply in the absence of exempt income. Therefore, the disallowance made by the AO was not upheld, and the appeal was allowed in part.

In conclusion, the Tribunal ruled in favor of the assessee regarding the treatment of business loss and disallowance under section 14A. However, the issue of disallowance of ROC filing fees was remanded back to the AO for further examination.