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TMI Blog2018 (1) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable opportunity to the assessee. Effective Ground of the appeal raised by the assessee is allowed in part. Income arising from forward exchange contract is assessable as capital gain - See CITIBANK OVERSEAS INVESTMENT CORPN., MUMBAI [ 2013 (1) TMI 997 - ITAT MUMBAI] - I.T.A. 7418/Mum/2013, 7032/Mum/2013, C.O. No.21/Mum/15 - - - Dated:- 5-1-2018 - S/Shri Rajendra,Accountant Member And Ram Lal Negi,Judicial Member Revenue by: Shri Jayant Kumar-CIT-DR Assessee by: Shri Arvind V. Sonde Order Rajendra, Challenging the order dated 13/9/13 of CIT(A)-15, Mumbai the assessee and the Assessing Officer(AO)have filed the cross appeals for the year under consideration. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at which contract was signed was much more than the spot rate of USD vis- a-vis Indian currency that it was a derivative contract that was not entered through exchange, that the bonafide of transaction was in question. He directed the assessee to justify the pricing of each and every contract entered/cancelled wherein huge losses were booked. As per the TPO the assessee was unable to submit any data from its AE regarding CUP for the transaction entered into, that it was claimed that it was collating the information. He permitted the assessee to file the necessary data. As it failed to furnish necessary details so the TPO held that the IT.s of FFEC , entered into year 2000 and cancelled in year 2007 were not at Arm s Length. Accordingly to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as capital loss. 5.Before us the Authorised Representative(AR)stated that the assessee had submitted only one year data of Bloomberg during the TP proceedings, that the FAA rejected the data for the remaining four years the data submitted by the assessee of an independent entity would prove that the transactions were at Arm s Length. He referred to the order of the TPO for the AY 2009-10(Pg-65-73 of the PB). The Departmental Representative (DR) supported the order of the FAA. 6.We have heard the rival submissions and perused the material before us. We find that the FAA had rejected the additional evidences produced by the assessee before him, that the assessee had submitted the Bloomberg data for five year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XXXXX .. 7. We have considered the rival submissions and perused the orders of the lower authorities and also the decisions relied upon by the Ld. Sr. Counsel. We find that the AO has based his finding on the findings in assessee's own case taken for A.Y. 2001-02. In that case, we find that the Tribunal in ITA No. 4436/Mum/2005 has held as under: We have carefully considered the rival contentions and the orders passed by the Commissioner (Appeals) as well as by the Assessing Officer and the case laws relied upon by the learned Sr. Counsel for the assessee. The assessee is a non- resident company and has invested in the equity shares of Citicorp Finance India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into by the assessee to safeguard the foreign exchange loan taken for purchase of debentures. There is also no dispute that debentures are capital assets and the income from sale of which has been treated as capital gain. The only dispute is regarding nature of income from the settlement of forward contract. We find that the same issue has already been considered by the Tribunal in the case of sister concern of the assessee i.e. Citicorp Banking Corporation Bahrain [ITA No. 6525/M/09j for the assessment year 2005-06. The Tribunal in the said case referred to the decision of Special Bench in the case of Apollo Tyres Ltd. (supra), in which nature of income arising from cancellation of foreign exchange forward contracts entered into by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding money being transferred to Singapore nor any such issue is in dispute before us. No doubt the respondent can raise an additional plea for the first time before the Tribunal in support of order of CIT(A) but same should be based on facts already on record. The plea raised on the presumption that money may not have been transferred to Singapore cannot be admitted at this stage. The dispute raised before us is only with regard to the nature of income from early settlement of forward foreign exchange contract taken to safeguard the foreign exchange loan which had been availed by the assessee for purchase of debentures. The income from sale of debenture has been assessed as capital gain. Therefore, respectfully following the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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