2016 (3) TMI 1272 - HC - Income Tax

ITAT rules foreign exchange gain/loss not operating revenue/cost in transfer pricing case

The delay in re-filing the appeal was condoned, and the main issue centered on whether foreign exchange gain/loss should be treated as operating ... Foreign exchange gain/loss - whether to be considered as an item of operating revenue/cost - Held that:- ITAT has in the impugned order noted the fact that the foreign exchange gain earned by the Assessee is in relation to the trading items emanating from the international transactions. Since the foreign exchange loss directly resulted from trading items, it could not be considered as a nonoperating loss. Further, it is noted by the Dispute Resolution Panel that the service agreement between the Associated Enterprise (AE) and the Assessee stated that for the specified products and services provided by the Assessee, it 'shall raise invoices on Ameriprise USA on the basis of a cost plus pricing methodology.' The ITAT was therefore right in holding that the AO was not justified in considering the foreign exchange loss as a non-operating cost. Issues:1. Delay in re-filing the appeal2. Correct treatment of foreign exchange gain/loss as operating revenue/costDelay in re-filing the appeal:The judgment begins by addressing the delay in re-filing the appeal, which is condoned for reasons stated. The application related to the delay is disposed of promptly, setting the stage for the main issue at hand.Correct treatment of foreign exchange gain/loss as operating revenue/cost:The core issue in this case revolves around whether the foreign exchange gain/loss should be considered as an item of operating revenue/cost. The Revenue filed an appeal against the ITAT order, questioning the correctness of directing the treatment of foreign exchange gain/loss. The ITAT, in its order, observed that the foreign exchange gain earned by the Assessee was related to trading items from international transactions. As the foreign exchange loss stemmed directly from trading items, it was deemed inappropriate to categorize it as a non-operating loss. Moreover, the Dispute Resolution Panel highlighted the service agreement between the Associated Enterprise (AE) and the Assessee, emphasizing the invoicing methodology based on a cost plus pricing approach. Consequently, the ITAT ruled in favor of the Assessee, stating that the foreign exchange loss should not be treated as a non-operating cost.Advance Pricing Agreement and Dismissal of Appeal:Furthermore, it was highlighted that an Advance Pricing Agreement had been established for subsequent Assessment Years, wherein the 'cost plus pricing methodology' was implicitly acknowledged. Given this context, the Court concluded that no substantial question of law arose in the present case. Consequently, the appeal was dismissed based on the findings and reasoning provided in the judgment.This detailed analysis of the judgment showcases the court's examination of the issues at hand, the arguments presented by both parties, and the ultimate decision reached by the Court, providing a comprehensive understanding of the legal reasoning involved in the case.