2021 (3) TMI 591 - AT - Income Tax

Tribunal Allows Revenue's Delayed Appeal; Overturns Monitoring Fees Disallowance, Upholds Hedging Contract Loss Deduction.

D.C.I.T, Circle-5 (2). Kolkata Versus M/s. Sisecam Flat Glass India Ltd. (Formerly known as M/s. HNG Flat Glass Ltd) And Vice-Versa

The Tribunal condoned the 103-day delay in the Revenue's appeal, admitting it. The disallowance of monitoring fees under Section 40(a)(ia) was overturned, ... TDS u/s 195 - Scope of the term 'Interest' as per clause 4 of the DTDA article between India and Germany - monitoring fees - HELD THAT:- Monitoring fees paid by the assssee to DEG Bank, Germany qualified as ‘interest’ both under Income-tax Act, 1961 as well as the Double Taxation Avoidance Agreement between India & Germany and the payment made in question was not liable to Income tax under the Act in terms of the specific exemption granted under Article 11(3)(b) of the indo-German DTAA. Hence, no deduction of tax at source was required to be made u/s. 195 of the Act. As there was no violation of Sec. 195 of the Act, the disallowance made u/s. 40(a)(ia) of the Act was deleted by the Ld. CIT(A). We find no infirmity in this finding of the ld. CIT(A). Loss on “Interest Rate Hedging Contract” - HELD THAT:- this issue is covered in favour of the assessee by the decision of the coordinate bench of this Kolkata Tribunal, ‘B‘ Bench in the case of M/s. Mcleod Russel India Ltd. Vs. DCIT [2019 (5) TMI 541 - ITAT KOLKATA]. As the ld. CIT(A) has applied the proposition of law laid down by this Tribunal on this issue , we find no infirmity in the order of the Ld. CIT(A). Issues Involved:1. Delay in filing the Revenue’s appeal.2. Disallowance of monitoring fees under Section 40(a)(ia) of the Income-tax Act.3. Deduction of loss on interest rate hedging contract.4. Depreciation on software expenditure.Detailed Analysis:1. Delay in Filing the Revenue’s Appeal:The Revenue's appeal was delayed by 103 days. After reviewing the petition for condonation of delay, the Tribunal was convinced that the Revenue had a sufficient cause for the delay. Thus, the delay was condoned, and the appeal was admitted.2. Disallowance of Monitoring Fees under Section 40(a)(ia) of the Income-tax Act:The assessee had obtained a loan from DEG Bank, Germany, and paid monitoring fees for loan servicing. The Assessing Officer (AO) disallowed the monitoring fees, treating it as not akin to 'interest' and thus subject to withholding tax under Section 195 of the Act. The Commissioner of Income-tax (Appeals) [CIT(A)] examined the definitions of 'interest' under Section 2(28A) of the Act and Article 11 of the Double Taxation Avoidance Agreement (DTAA) between India and Germany. The CIT(A) concluded that monitoring fees qualified as 'interest' under both the Income-tax Act and the DTAA, and hence, it was exempt from tax in India under Article 11(3)(b) of the Indo-German DTAA. Consequently, no tax deduction at source (TDS) was required, and the disallowance under Section 40(a)(ia) was deleted. The Tribunal found no infirmity in this finding and upheld the CIT(A)'s decision, dismissing the Revenue's ground.3. Deduction of Loss on Interest Rate Hedging Contract:The assessee had entered into an interest rate swap derivative contract with State Bank of India to reduce the effective interest cost on its borrowings. Due to adverse fluctuations in LIBOR rates, the assessee incurred a Mark to Market (MTM) loss of Rs. 5,11,03,987. The AO disallowed this loss, stating that 'loss' cannot be equated with 'expenditure' under Section 37(1) of the Act. The CIT(A) held that the loss from the interest rate swap was in the revenue field and deductible from business profits under Section 28 of the Act. The Tribunal agreed with the CIT(A), referencing a similar decision by the Kolkata Tribunal in the case of Mcleod Russell India Ltd. vs. DCIT. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the Revenue's grounds on this issue.4. Depreciation on Software Expenditure:In the cross-objection, the assessee challenged the CIT(A)'s decision not to allow depreciation on software expenditure treated as capital expenditure in the previous assessment year (AY 2011-12). The CIT(A) had denied the depreciation claim because the assessee had not accepted the Department's stand in the earlier year. The Tribunal restored the matter to the AO for fresh adjudication, noting that the AO had treated the expenditure as capital in nature and granted depreciation in the earlier year. The Tribunal directed that depreciation should be granted on the Written Down Value (WDV) of the asset, subject to the outcome of the assessee's pending appeal for AY 2011-12. The Tribunal allowed the cross-objection for statistical purposes.Conclusion:The Tribunal dismissed the Revenue's appeal and allowed the assessee's cross-objection for statistical purposes. The order was pronounced in the open court on March 15, 2021.