ASVINI FISHERIES (P) LTD. ,CHENNAI vs. DCITCOMPANY CIRCLE 1(1) , CHENNAI

I submit that the said order of the Commissioner of Income Tax (Appeals) — 1 (Cit-A) was received by the Appellant Company on 06.04.2016.

3. The appeal ought to have been filed in the month of July 2016. I submit that right from the beginning, I am the person who is responsible for the legal matters, especially the tax matters, namely representing before the Assessing Officer, before the Appellate authorities, engaging the Counsel for follow-up action. I submit that from April 2016, I was constantly undergoing a treatment for my heart ailment. Subsequently, I had to undergo an open heart surgery for replacement of MITRAL valve in June 2016 and thereafter, I was under convalescence at home. I rejoined the duties in the Petitioner Company during

:- 3 -: & 1709/Chny/2017 February 2017. Thereafter, I have to take stock of the situation and I have to constantly visit my Authorised Representative (AR) to take a decision where to file a further appeal or to proceed before the AD. My AR and the Legal counsel advised us that the order of the ITAT is per se wrong and therefore gave a clear legal opinion to proceed in filing a Tax case appeal before this Hon’ble High Court. Thereafter, during the month of March 2017 a request was placed before the Board and upon their approval we had requested our Legal counsel to draft the appeal and file the same before the Hon’ble Income Tax Appellate Tribunal. Thereafter, we have filed the appeal.

4. Hence the appeal could not be represented within the time limit allowed. There is a delay of 494 in filing the appeal.

6. I state that the delay is neither willful nor wanton but due to the aforesaid reasons only.

The AR pleaded that in the above facts and circumstances and in the interests of justice, the delay in filing the appeals may be condoned. We heard the rival submissions and on due consideration and in the interests of justice we condone the delay.

“1. The Order of the Commissioner of Income Tax (Appeals) -1 dated 03.03.2016 for the Assessment year 2010-11 is contrary to the facts and circumstances of the case and is opposed to the principles of equity, natural justice and fair play. 2. The Learned (CIT-A) erred in holding that loss on forward contracts in forex derivatives claimed by the Appeflant for Rs.5,14,08,317/- falls within the ambit

:- 4 -: & 1709/Chny/2017 of speculative business which cannot be allowed to set off against normal business income as per section 73 of the Act.

3. The learned CIT-A erred in law in not relying upon the order of the ITAT Chennai ‘B’ Bench in dated 18.12.2015 for the Assessment year 2009-10.

4. The learned CIT-A failed to appreciate that once the Appellant earns profit on account of exchange rate fluctuations and it is taxed, similar should be the case where appellant incurs loss, and the same should be allowed by the Revenue Department. In the instant case, there is a double standard followed on the part of the AO to disallow the claim of the appellant for the loss incurred due to fluctuations in Foreign Currency transactions connected with the appellant’s regular business activities.

5. The learned CIT (A) failed to appreciate that Section 43(5) of the Income Tax Act 1961 defines speculative transaction to mean a “transaction in which a contract for purchase or sale of a commodity, including stocks and shares is settled otherwise than by actual delivery of the commodity or scrips and is actual loss and not arising out of Marked to Market valuation. The loss incurred by the Appellants is a real loss and not notional or fictitious, and the same arose on actual settlement/conclusion of foreign exchange contracts and hence, not notional or contingent in nature.”

5. It is brought to our notice that against the above orders of the Ld. CIT(A), the Revenue filed appeals which were disposed by this tribunal in & 1760/Mds/2016 dated 08.12.2017. The relevant portion of the order is extracted as under:

“5. We have considered the rival contentions. We have gone through the order in dated 18.12.2005 for ay 2009-10. It is seen that the CIT(A) has appreciated the facts of the case and decided the issue. Thereafter, this tribunal disposed the matter. In the impugned years, since, the AO has passed almost similar order, the relevant portion of the order for ay 2010-11 is extracted as under: “ D. Based on the above discussion and the facts of the instant case, thee assessee's transactions are regarded as :- 5 -: & 1709/Chny/2017 speculative transactions since it satisfies the provisions of Section 43(5) to treat it as 'Speculative transaction' for reasons mentioned below. a. There are contracts between the assessee company and the Financial Institutions (in this case Banks) for the non deliverable derivative specifically Cross currency Call Option Contract without any underlying exposure. The assessee had not furnished any risk analysis statement with underlying exposure and in fact the contract notes submitted by the assessee do not have any underlying asset / exposure. b. The assessee had neither furnished the contract notes nor the risk analysis statement submitted to the banks while applying for forward contracts. There was no evidence furnished with regard to the underlying risk for which derivative instruments were taken. c. The commodity referred in Section 43(5) includes stock, shares and also the non deliverableForex derivatives. As per section 43 (5) the contracts for purchase and sale of any commodity including stock and shares also includes derivatives which can be inferred from the proviso (d) to the above section where it is mentioned that the trading in derivatives referred in clause (ac) of section 2 of Securities Contracts Regulation Act, 1956 done in a recognized stock exchange are deemed to be excluded from the definition of speculation business under the Income Tax Act. Forex Derivatives are covered under the definition of clause (ac) of section 2 of Securities Contracts Regulation Act, 1956. The term Securities as defined under Securities Contracts Regulation Act, 1956 in clause (h) of section 2 include derivatives (sub-clause ia). The transaction falls into exclusion under proviso (d) only when it is done through a Recognised Stock Exchange. If the commodity does not include Derivatives, then the same would not have been excluded in the proviso (d) to section 43(5). This clearly indicates that the Derivatives transacted by the assessee

:- 6 -: & 1709/Chny/2017 falls within the scope of commodities but not transacted through Recognised Stock Exchanges. Thus the contention of the assessee that its transactions by way of Forex Derivatives based on Foreign Currencies through forward contracts are not commodities as per section 43(5) is not valid. d. Since the Act specifically provides exclusion only to those transactions done through recognized Stock Exchanges, the assessee's transactions with Banks are not covered for any exemption from the purview of Sec.43(5). e. The assessee's claim that derivatives are excluded under proviso (d) to section 43(5) is not acceptable since the proviso do not give blanket exclusion to all the derivative contracts but only to such contracts that are traded in the recognized stock exchange. Thus the assessee's argument that Forex Derivatives are not Speculative Transactions is not accepted and accordingly these transactions are to be treated as speculative transactions under section 43(5). f. Also, the assessee had not actually delivered the currency to the Banks with whom it had entered such contracts. In the instant case, the assessee either cancelled or squared up the forex forward contracts without delivery of any underlying asset either the Foreign Currencies or the Export Proceeds in denominated currencies. g. In the absence of any tri-partite agreement between the assessee, Banks and the person to whom the exports were to be made, there would be no control for the Banks in case if the alleged transactions by the assessee were based only against future export by way of hedging to protect the return/minimise the risk. This clearly indicates that the assessee's regular export business activities were independent to the exotic forward contracts entered by the assessee and the assessee act was earn more profit through such derivative instrument by way of speculation.

:- 7 -: & 1709/Chny/2017 h. These forward contract transactions of the assessee were only with Banks and not routed through or done through any recognized stock exchanges. i. The cross currency pegging between two different foreign currencies by the assessee through these forward contracts further asserts the intention of the assessee and nature of such transactions as these transactions are of speculative in nature. j. The assessee neither proved that there was underlying asset nor furnished any confirmation in this regard (i.e. details the underlying asset) from the Bank(s) with whom such contracts were entered. k. The Nature, Frequency and the volume of transactions also strengthen the fact that the assessee had entered numerous contracts which even outstate the number of exports/export invoices that the assessee would have made in the ordinary course of business. The nature of transaction by way of Buy and Sell Forex derivatives coupled with swap and cross currency pegging. The frequency and the magnitude/ quantum of such exotic forward contracts entered by the assessee clearly establishes that the assessee's act was only of speculative in nature in order earn profit not only through regular business activities but also through such exotic forex derivative contracts. Any such act falls within the ambit of S.43(5). l. In the decision of Comfund Financial Services(l) Ltd vs DCIT, The ITAT Bangalore bench has also held that " Even the definition of the word "commodity" as per Oxford Illustrated Dictionary is "useful thing; article of trade" When the Court of Appeal (in an English judgement) held even dollar, which is nothing but a currency also to represent a commodity, we find no difficulty in holding that shares and securities and also units of UTI should also be considered as commodity .... "

:- 8 -: & 1709/Chny/2017 m. Further reliance is placed on the recent decision of the Honorable ITAT, Bangalore 'A' Bench, in the case of Assistant Commissioner of Income-tax vsK.Mohan&Co(Exports) (P) Ltd. (2010) 39 DTR 97 wherein it was held that settlement of Forward contracts without actual delivery of currency as a speculative transaction under section 43(5) of the Income-tax Act, 1961. This adds further strength for treating the assessee's transactions in forex derivatives as speculative transactions. In view of the above discussions, the income/loss from options and forward contracts entered by the assessee forms part of the Speculation Business of the assessee as per explanation 2 to section 28. Accordingly, the net loss of Rs.5,14,08,317/ - claimed by the assessee falls within the ambit of speculative business which cannot be allowed to be set off against the normal business income as per section 73 of the Income tax Act, 1961. Such losses from speculation business of Rs.2,56,46,747/ - is allowed to be carried forward for set off against any future speculation income accrue in succeeding period and in relevant assessment years, as per the provisions of the Act on 'Set-off of Losses'. [ Disallowance: Rs.5, 14,08,317/- ]” From the above and from the assessment orders, it is clear that the relevant facts are not placed before the AO by the assessee. The assessee has not placed proper submission on the facts of the case before the CIT(A) and the CIT(A) has also not appreciated the facts with reference to the impugned issues. However, the CIT(A), merely relying on the order of this tribunal in earlier year, has directed the AO to pass order in conformity with the direction of the tribunal. In view of the above facts and circumstances, we deem it fit to set aside the impugned issues to the AO for afresh examination. The AO shall afford adequate opportunity to the assessee to lay the relevant materials in support of its contention and after affording adequate opportunity, shall pass speaking orders in accordance with law. The appeals filed by the Revenue are treated as allowed for statistical purposes.”

:- 9 -: & 1709/Chny/2017 Since, the corresponding assessments were resorted to the AO for fresh examination in the above orders, following them, these issues are also remitted back to the AO for fresh examination. The assessee shall place all the materials in its support before the AO and shall comply to AO’s requirements as per law. The AO is also free to conduct appropriate enquiry as deemed fit, but he shall furnish adequate opportunity to the assessee on the material etc to be used against it and decide the matters in accordance with law.

Order pronounced on Monday, the 06th August, 2018 at Chennai.