Income Tax Appellate Tribunal - Chennai
Acit, Chennai vs Barclays Investments And Loans (I) ... on 31 May, 2017
आयकर अपील य अ
धकरण, 'डी' यायपीठ, चे नई
IN THE INCOME TAX APPELLATE TRIBUNAL
'D' BENCH : CHENNAI
ी अ ाहम पी. जॉज ,लेखा सद य एवं ीजी. पवन कुमार, या यकसद यकेसम
BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER
AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER
आयकर अपील सं./I.T.A. No. 3292/Mds/2016
नधा रण वष /Assessment year : 2010-2011
The Assistant Commissioner Vs. M/s. Barclays Investments and
of Income Tax, Loans (I) Ltd,
Corporate Circle 1(2) No.144-145. Malavika Centre,
Chennai 600 034. Ground floor,
Kodambakkam High Road,
Chennai 600 034.
[PAN AAACR 3653F]
(अपीलाथ /Appellant) ( यथ /Respondent)
अपीलाथ क ओर से/ Appellant by : Shri. Pathlavath Peerya, IRS, CIT.
"#यथ क ओर से /Respondent by : None
सन
ु वाई क तार&ख/Date of Hearing : 04-05-2017
घोषणा क तार&ख /Date of Pronouncement : 31-05-2017
आदे श / O R D E R
PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER:
In this appeal filed by the Revenue, it has raised the following grounds:-
:- 2 -: ITA No.3292/Mds/2016
2. The learned CIT(A) erred in deleting the disallowance made in respect of losses claimed on fair valuation of Equity Linked Debentures (ELDs) .
2.1 The learned CIT(A) failed to appreciate the losses claimed on fair valuation of ELDs were notional in nature and hence not allowable .
2.2 The learned CIT(A) failed to consider the contention of the A.O. in the Remand Report that the statistical models adopted by the assessee contained drawbacks and hence the valuation arrived at utilizing these statistical models of the ELDs does not give a true and correct picture of the profit/loss 2.3 The learned CIT(A) decided the issue in favour of the assesssee instead of remanding the issue back to the A.O. placing reliance on the decision in J.P. Morgan Securities India Pvt Ltd vs. Addl.CIT and the findings of the CIT(A) are perverse on facts to the extent that the loss is allowed without verification of the quantum of loss.
2.4 The CIT(A) failed to appreciate that the Board's Circular No.3/2010 dt. 23.10.2010 which was subsequent to the quoted decision of the Apex Court in CIT vs. M/s. Woodward Governor India Pvt Ltd (2009) 312 ITR 254, indicating that notional losses on MTM valuations are not allowable, becomes relevant.
3. The learned CIT(A) has erred in holding that disallowance u/s.14A will not apply if no exempt income is received or receivable during the year.
3.1 The learned CIT(A) erred in deleting the disallowance effected u/s.14A without appreciating the fact that the assessee had investments in shares and mutual funds, capable of earning exempt income, thereby attracting the provisions of Sec.14A read with rule 8D 3.2 The learned CIT(A) failed to appreciate the fact that even in the absence of exempt income, if exempt income bearing investments are available in a particular year, the provisions of Sec.14A read with Rule 8D shall have applicability and the Assessing Officer is bound to disallow the expenditure thus worked out.
3.3 The CIT(A) failed to appreciate that the Hon'ble Bombay High Court in the case of Godrej & Boyce has held that the provisions of sub sections (2) and (3) of Section 14A :- 3 -: ITA No.3292/Mds/2016 of the Income Tax Act 1961 are constitutionally valid and that the provisions of Rule 8D of the Income Tax Rules as inserted by the Income Tax (Fifth Amendment) Rules 2008 are not ultra vires the provisions of Section 14A, more particularly sub section (2) and do not offend Article 14 of the Constitution;
3.4 The learned CIT(A) failed to appreciate that in a case involving diversion of funds to affiliates without interest, the assessee is duty bound to prove the commercial expediency for entering into interest free transactions with the subsidiary companies/affiliates, with sufficient evidence before the A.O. 3.5 The learned CIT(A) failed to appreciate CIT Vs. Cornerstone Exports Pvt. Ltd. [67 Taxman.com 345.] and decision of the Hon'ble High Court of Punjab & Ludhiana in the case of CIT vs Abhishek Industries Ltd are squarely applicable to the instant case.
2. A reading of the above grounds clearly show that Revenue is aggrieved on the ld. Commissioner of Income Tax (Appeals) allowing loss arising out of fair valuation of Equity Linked Debentures (ELDs) and deleting the disallowance made by the ld. Assessing Officer u/s.14A of the Act.
3. Assessee a non banking finance company had filed its return of income for the impugned assessment year declaring a loss of =160,87,18,146/-. During the course of assessment proceedings, it was noted by the ld. Assessing Officer that assessee had claimed a loss of =3,21,37,17,255/- on fair valuation of ELDs. Assessee's claim was that underlying instruments funded by the :- 4 -: ITA No.3292/Mds/2016 ELDs, were a basket of equity shares traded in Bombay or National Stock Exchange, S € P CNX Nifty Index or BSE 30 share. As per the assessee valuation of ELDs was done, considering such underlying investments based on certain sophisticated statistical models named Vasicek Model Black Scholes Stochastic Volatility Mode Green Function Apprach.
Contention of the assessee was that gain arising on fair valuation of the ELPs were recognized and offered to tax whenever it was there.
Ld. Assessing Officer required the assessee to furnish details of the gains recognized on fair valuation on ELPs for assessment years 2008- 09, 2009-10 and 2010-2011. As per the ld. Assessing Officer such details for assessment years 2008-09 and 2009-10 were not furnished despite number of opportunities given to the assessee. The observation of the ld. Assessing Officer in this regard as appearing in the assessment order is reproduced hereunder:-
''It is not possible to verify whether the additional loss provided as on date of Balance Sheet is adjusted as per actual loss/gain which take place on the date of closure of this ELD. For example: let us assume if an ELD is booked at a face value 11akh for 1 years, say from 01.01.2011 to 31.01.2012, let us assume as on 31.03.2011, the assessee provide for a loss of say Rs. 30,000/-, but on the closure of this ELD, the final loss may be Rs. 20,000/-, :- 5 -: ITA No.3292/Mds/2016 in which case the assessee company has to add back the excess provision of Rs. 10,000/-. In the instant case, it is not supported by any evidence. Moreover the assessee company claims that accounting standard 30 was adopted for valuing the financial instrument but there was no detail of how this accounting standard is applied in fair valuation ELD. Hence this system adopted by the assessee company does not reflect the true/correct profit of the Assessee Company; hence the loss on valuation of ELD is disallowed'' He thus disallowed the claim of =3,21,37,17,255/-.
4. Ld. Assessing Officer also noted that assessee had substantial investments, income from which were exempt from tax.
He applied Sec. 14A of the Act r.w.r 8D and made a disallowance of =1,55,60,891/-.
5. Aggrieved, the assessee moved in appeal before ld.
Commissioner of Income. With regard to valuation of ELPs, contention of the assessee was the models used by it considered the returns delivered by the underlying instruments, over the tenure of ELDs.
Assessee pointed out that this was in accordance with Accounting standard 30 of ICAI. Contention of the assessee was that gains arising on fair valuation of ELP was also offered to tax. Reliance was placed on the judgment of Hon'ble Apex Court in the case of CIT vs. Woodward Governor India (P) Ltd (2009) 312 ITR 254 for its argument that mark to market loss was an allowable expenditure.
Further, according to the assessee it was not a notional loss. Assessee :- 6 -: ITA No.3292/Mds/2016 also relied on orders of ld. Commissioner of Income Tax (Appeals) for assessment years 2008-09 and 2009-2010 which dealt with this issue.
Ld. Commissioner of Income Tax (Appeals) thereupon required the ld.
Assessing Officer to furnish a remand report. When the remand report was put to assessee it gave following comments.
Sr.No Contention of the Assessing The Appellant's submission
Officer document in
which
contention
made
1 Assessee did not furnish list of Assessment The averment of the
E:LDs (Para 4.3) and their fair order Assessing Officer that the
valuation for the A Ys 2008-09 Appellant did not furnish list
and A Y of ELDs and their fair
2009-10. valuation for A Ys 2008-09 and A Y 2009-,10 is factually incorrect.
The AO vide his notice dated 19 March 20"14 had requested for following data for A '( 200809 to AY 2010- 11 :
• Name of the subscriber • Debenture No • Face Value (FV) Amount • Underlying Asset • Cost of acquisition • Sale • Loss • Gain The Appellant vide its submission dated 25 March 2014 had duly submitted the relevant details requisitioned by the AO.
During the assessment
proceeding)s, the assessee was Remand These details were
:- 7 -: ITA No.3292/Mds/2016
specifically requested to .submit the Report submitted by the Appellant
following details to the Assessing Officer vide
submission dated
25 March 2014. The AO has
1. How the fair valuation of not made) any averment in
ELD was done? How the relation to these details in
cost of acquisition and sale tile remand report, Therefore
consideration was assumed by implication, the
for arriving AO has accepted that the
details were submitted during
2. Loss/gain for the Asst. Year the assessment proceedings.
2008-09/2009-10/2010- 11
on fair valuation of ELD.
3. Since the gain/loss is
Provided contingently, how
the additional loss./
reduction in loss on actual
closure of debenture is
accounted,
4. How does this system
reflect true and correct
profit
5. Details of accounting
standards adopted and its
implication
In response the assessee had stated that various valuation models such as vasicek model, blacksholes model, stochastic volatility model, Model and green function approach.
3 Remand It is pertinent to note that The AO has . stated that report these details have been assessee has not submitted the . picked up by the AO from following : the submission of (he Appellant dated 25 March 1 The assessee has not .2014. Post the submission explained out of . the various by the Appellant, the models (i.e. I/asicek Assessing Officer not Model, Stochastic Volatility' Black requisitioned any further and schools model) which model details I evidences from the was adopted for which Appellant in relation to fair instruments /derivatives. valuation
2. The assessee has not stated whether the same model The Appellant had issued :- 8 -: ITA No.3292/Mds/2016 was used for all years for all ELDs in earlier $05 well as in years for the same the year under consideration instruments/derivatives and these valuation models were used to fair value such
3. The assessee has not ELDs as on the last day of submitted, a single evidence to the previous year. In fact, provide that the assumptions these 1191]1 same models made under the various model are used by the Appellant on are on realistic basis. a year an year basis and the resultant gains / Iosses arising on such ,'air valuation
4. Pointed out certain drawbacks in the models have been offered to tax / adopted due to which the closing claimed as deduction. The value / gains / loss may be AO was informed that the i abnormal and that the approach of fair valuing the assessee has not submitted any ELDs is followed consistently material evidences /11 support every year.
of the valuation.
Pertinently, in the years when the Appellant had offered to tax. the gains arising on fair;
valuation of ELDs, no, questions about the valuation approach, etc. has been raised tile' AO. Only in the year in which losses have been claimed the Assessing Officer , as an after-thought (as these points were neither raised durinq the, course' of assessment proceedings nor have, these points' been mentioned in the assessment order) is alleging that the valuation models used have certain inherent deficiencies and the Appellant had not submitted complete details during the course of assessment proceedings.
The Appellant reiterates that all the details as were requisties during the course of assessment proceedings were submitted and the approach adopted by the AO is inconsistent and against thee principles of natural :- 9 -: ITA No.3292/Mds/2016 justice as on one hand the losses are being disallowed and on the other hand the gains are being taxed It may be further mentioned that under r Section 145(2) of the Act, income chargeable under the head 'Profits and gains of business or profession' is subject to the system of accounting regularly employed by the assessee. Thus, in the absence of any specific treatment being prescribed under the Act for valuation of ELDs for the year under consideration, AS-30 prescribed by the Institute of Chartered Accountants of India has been followed consistently by the Appellant' Where the Assessing Officer is not satisfied about the correctness of books of accounts, he can under section 145(3) of the Act has the right to reject the books of accounts of the Appellant and make as assessment under section 144 of the Act.
Such power could be
exercised by the Assessing
Officer only when he is not
satisfied about the
correctness or completeness
of the accounts of the
assessee. In the assessment
order passed for AY 2010-11,
the AO has not pointed out
any deficiency in the books of
account maintained by the
Appellant.
The ld. AO failed to
appreciate the fact that the
:- 10 -: ITA No.3292/Mds/2016
Appellant ;s a part of a very
large group: of bank in
United Kingdom and that
the books of account of the
Appellant are audited by
the reputed Chatered
Accountancy firm. Has there
been any deviation/
inconsistencies in applying
the valuation models, .the'
same would have been
reported (including
quantification of such
deviation) by the Auditors, in
their audit report.'
5 Gains reflected by assessee on Assessment In this regard, it is
fair valuation of valuation of ELDs order (para submitted that Assessing
for II Y 2008-09 and A Y :2009-10 4.3) Officer inadvertently
did not match with the compared gains on fair
financials of the assessee valuation of EL:1)s for A
Ys 2008-09 and A Y 2009-
10 with the gains arising
on redemption of ELDs (I ie
on actual redemption as
against fair valuation. at
the year end).
6 Remand The factual error was on
No such reconciliation has Report. the part of the AO which
been submitted during the was duly pointed to him
assessment proceedings as well and requisite documents
as before the CIT(A). were submitted as an
evidence :on 2 Mav 2014
vide a rectification
application. The question
of submitting any
reconciliation does not
arise..
7 Assessment In relation to this, it is
Assessee did not furnish as to submitted that these
how Accounting Standard
order (para
4.4) details were submitted vide
(AS-30) issued by the submissions dated 6 March
Institute of chartered Accountants 2014 and 25 March 2014
of India'(lCAI) was applied to fair wherein it was categorically
valuation of ELDs. mentioned that ELDs were
fair valued as per
Accounting Standard ('AS)
_. 30 and reference was
:- 11 -: ITA No.3292/Mds/2016
made to paragraph2.13 of
Schedule 18 of the audited
financial statements
wherein details about the
accounting policy
consistently followed by
Appellant for accounting of
ELDs was mentioned.
8 Though the assessee has Remand The Assessing Officer never
claimed that the fair valuation of asked the Appellant to
ELD as per the Accounting Report.
Standard (AS) - 30 is followed substantiate as to whether
consistently, the assessee has the AS 30 has been
not substantiated with - evidence consistently followed by the
that the valuation Appellant.
models adopted /value the
instruments / derivatives is on consistent basis.
Nevertheless, on multiple
occasion, the Appellant
submitted that fair valuation of ELDs ' is being done on a consistent basis. This fact ,is also evident from the financial statements of the Appellant wherein the accounting' policies followed are disclosed and which categorically mention the accounting policy following by the Appellant in relation to ELDs.
As mentioned earlier, the books of account of the Appellant are audited by a' reputed firm of Chartered Accountants and the Appellant is a part of a very large group of bank in United Kingdom. Had there been any deviation /inconsistencies in application of fair valuation models, the same would have been reported (including quantification of such deviation) by the auditors in the audited financial statements.
9 The A2-30 has not recognized Remand This statement is factually any of the models adopted by the Report. incorrect Though AS-30 does assessee to value the not prescribe any particular :- 12 -: ITA No.3292/Mds/2016 derivatives. valuation model, para 54 dealing with Fair Value Measurement Considerations' states that if there is a valuation technique commonly used by market participants to price the instrument and that technique has been demonstrated to provide reliable estimates of price obtained in actual market transactions, the entity can use such technique (the extract of the AS-30 is attached herewith for your perusal) Thus, the choice of selection of a particular valuation model is left to the entity concerned. Given this, the Appellant chose to use the valuation models details of which has already been submitted.
6. Ld. Commissioner of Income Tax (Appeals) after verifying the above comments of the assessee and remand report of the ld.
Assessing Officer held that the claim was in accordance with Accounting Standards 30 prescribed in ICAI and was allowable. With regard to the disallowance u/s. 14A of the Act, ld. Commissioner of Income Tax (Appeals) held that ld. Assessing Officer had not made any comments in his remand report. According to him, assessee had not earned any dividend income and hence Sec. 14A of the Act had no applicability. He thus allowed the appeal of the assessee.
:- 13 -: ITA No.3292/Mds/2016 7. Now before us, ld. Departmental Representative strongly
assailing the order of the ld. Commissioner of Income Tax (Appeals) submitted that ld. Assessing Officer was never given a chance to substantiate the stand taken by him in remand report. According to him, assessee was claiming notional loss every year with the sole intention of depressing its profits. Value of the underlying instruments of the ELDs was not correctly estimated by the assessee.
As per ld. Departmental Representative assessee had followed a method, which was not known to law. With respect to disallowance u/s. 14A of the Act, ld. Departmental Representative submitted that assessee's claim of having no exempt income was not verified by the ld. Commissioner of Income Tax (Appeals).
8. Nobody appeared on behalf of the assessee. We find that the case was earlier posted for hearing on 23.01.2007, when one Shri. Balachander appeared and on his request the case was adjourned to 08.03.2017. On 08.03.2017 nobody appeared on behalf of the assessee and the case was adjourned to 04.05.2017. Today when the case was taken up, we found a letter 03.05.2017 pleading for another adjournment. However, no power of attorney has been filed by M/s.
SRBC & Associates Ltd authorizing them to appear on behalf of the assessee. We are not inclined to grant adjournment sought by an unauthorized party.
:- 14 -: ITA No.3292/Mds/2016
9. Coming to the merits of the case of the Revenue, what we find is that method of valuation of ELDs was not carefully verified by the ld. Commissioner of Income Tax (Appeals), before giving relief to the assessee. Assessee had himself stated that method used by it were based on certain statistical tool what has been reproduced by us at para 3 above. Even otherwise, assessee's reply to the remand report given by the Assessing Officer, was never furnished to the Assessing Officer. In our opinion the ld. Assessing Officer should have been given one more opportunity since assessee had strongly objected to the observations of the ld. Assessing Officer made in the remand report.
10. Coming to the aspect of claim of disallowance u/s. 14A of the Act, whether assessee had claimed any exempt income is not clear from the records. It may be true that ld. Assessing Officer never offered any comments on this aspect in remand report. However, in our opinion ld. Commissioner of Income Tax (Appeals) should have factually ascertained whether assessee had any exempt income.
11. Considering all these, we are of the opinion that both the issues require a fresh look by the ld. Assessing Officer. We set aside the orders of the authorities below and remit both the issues back to :- 15 -: ITA No.3292/Mds/2016 the file of the ld. Assessing Officer for consideration afresh in accordance with law.
12. In the result, the appeal of the Revenue is allowed for statistical purposes.
Order pronounced on Wednesday, the 31st day of May, 2017, at Chennai.
Sd/- Sd/-
(जी. पवन कुमार) (अ ाहम पी. जॉज )
(G. PAVAN KUMAR) (ABRAHAM P. GEORGE)
या$यक सद&य/JUDICIAL MEMBER लेखा सद&य/ACCOUNTANT MEMBER
चे नई/Chennai
,दनांक/Dated: 31st May, 2017.
KV
आदे श क " त.ल/प अ0े/षत/Copy to:
1. अपीलाथ /Appellant 3. आयकर आयु1त (अपील)/CIT(A) 5. /वभागीय " त न6ध/DR
2. "#यथ /Respondent 4. आयकर आय1
ु त/CIT 6. गाड फाईल/GF