M/S. ALCHYMARS ICM SM PVT. LTD.,,CHENNAI vs. DCIT, CORPORATE RANGE-I, , CHENNAI

This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-1, Chennai, in dated 14.02.2020. The assessment was framed by the DCIT (OSD), Corporate Range-1, Chennai for the assessment year 2012-13 u/s.143(3) r.w.s. 92CA of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 16.02.2016.

At the outset it is noticed that this appeal is time barred by 186 days as the order of CIT(A) was received by assessee on 24.02.2020 and appeal was to be filed before Tribunal on or before 25.04.2020, instead the appeal was filed by assessee only on 27.10.2020 thereby delay of 186 days. The assessee has filed condonation petition along with affidavit and stated that the delay was due to Covid-19 pandemic. The ld.counsel for the assessee stated the Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. In term of the directions of Hon’ble Supreme Court, we condone the delay in filing of this appeal by assessee and admit the appeal for adjudication.

The first issue in this appeal of assessee is as regards to the order of CIT(A) confirming the disallowance of Rs.37,08,705/- being loss incurred in foreign currency exchange fluctuation on account of ECB loss holding the same as capital in nature. For this, assessee has raised following grounds:-

Brief facts are that the assessee is engaged in the business of manufacture and sale of API and bulk drug intermediates. The AO during the course of assessment proceedings noticed that the assessee had claimed loss of Rs.37,08,705/- arising out of foreign exchange fluctuation in respect of foreign loss obtained by assessee. The AO disallowed the loss claimed on the ground that the amounts were utilized for acquisition of assets and hence, capital in nature. Aggrieved, assessee preferred appeal before CIT(A). The CIT(A) after considering the submissions of the assessee noted that gain on fluctuations on account of foreign currency loan taken to acquire fixed capital asset will be treated as capital receipt. Hence, loss on fluctuation on account of foreign currency loans taken to acquire fixed capital assets will be a capital loss. Aggrieved, assessee came in appeal before the Tribunal.

Before us, the ld.counsel for the assessee explained that assessee has availed external commercial borrowing to part finance its expansion project. The loan was drawn down and utilized for purchase of fixed assets all of which were domestic assets. He contended that assessee did not use the loan to procure assets from abroad. Therefore he argued, that there has been fluctuation in exchange rate viz-a-viz the rate on which loan was availed. The differential or transactional difference has resulted in loss of Rs.37,08,705/- to the assessee. The ld.counsel explained that the AO as well as the CIT(A) has considered the application of provision of section 43A of the Act and disallowed the loss. The ld.counsel argued that section 43A of the Act has been inserted to provide that if an assessee incurs such a loss on account of an imported asset, then such exchange loss has to be adjusted with the cost of the respective asset and should not be considered as a revenue item. He argued that when there is a specific section for treatment of such loss for an imported asset, there is no such section for such loss incurred on account of domestic assets. There is no such section for such loss on account of domestic loss. He then took us through the provisions of section 43A of the Act and also relied on the decision of Hon’ble Supreme Court in the case of Wibro Finance Ltd., vs. CIT, Civil Appeal No.6677 of 2008, wherein this issue was considered

When these were pointed out to ld. Senior DR, he only relied on the assessment order and that of the CIT(A).

We have heard rival contentions and gone through facts and circumstances of the case. Admitted facts are that the assessee has availed an external commercial borrowing to part finance its expansion project. The loan was drawn down and utilized for the purpose of fixed assets all of which were purchased from domestic market i.e., domestic assets. The assessee did not use the loan for purchase of assets from abroad. Accordingly, fluctuation in the exchange rate viz-a-viz the rate at which loans was available, the transactional gain or loss is to be assessed as Revenue. Respectfully following the decision of Hon’ble Supreme Court in the case of Wipro Finance Ltd., supra, we allow the claim of assessee.

The next issue in this appeal of assessee is as regards to the order of CIT(A) confirming the action of AO in making disallowance of expenses relatable to exempt income by invoking the provisions of section 14A r.w.rule 8D of the Rules amounting to Rs.61,513/-.

In the result, the appeal filed by the assessee is partly allowed.