2022 (9) TMI 1598 - AT - Income Tax

Share trading income treated as business income, TDS section 195 liability rejected, community contributions allowed as revenue expenditure

Sociedade De Fomento Industrial Pvt. Ltd. Versus The JCIT, Margao Range, Goa AND The ACIT, Central Circle, Goa Versus Sociedade De Fomento Industrial Pvt. Ltd.

Sociedade De Fomento Industrial Pvt. Ltd. Versus The JCIT, Margao Range, Goa AND The ACIT, Central Circle, Goa Versus Sociedade De Fomento Industrial Pvt. ... Issues Involved:1. Treatment of Short Term Capital Gains as Business Income.2. Disallowance under Section 14A read with Rule 8D.3. Disallowance under Section 40(a) for non-deduction of TDS on foreign payments.4. Nature of expenditure on community development as capital or revenue.5. Allowability of foreign exchange fluctuation loss on EEFC account.Detailed Analysis of the Judgment:1. Treatment of Short Term Capital Gains as Business Income:The primary issue was whether the short-term capital gains from the sale of shares of Sesa Goa Ltd. should be treated as business income. The Assessee argued that the shares were held as investments and not as stock-in-trade, consistently showing such investments in its books. The Revenue contended that due to the magnitude and nature of transactions, the gains should be treated as business income. The Tribunal upheld the Revenue's view, emphasizing that the magnitude of transactions and the strategic nature of acquiring shares in a company operating in a similar business indicated a business motive rather than an investment intention. The Tribunal relied on various judicial precedents, including the Supreme Court's decision in Raja Bahadur Kamakhya Narain Singh, which highlighted that the magnitude of transactions is a determining factor in such cases.2. Disallowance under Section 14A read with Rule 8D:The Assessee challenged the disallowance made under Section 14A read with Rule 8D for expenses incurred in earning exempt income. The Tribunal referred to the ITAT Special Bench decision in ACIT vs. Vireet Investment Pvt. Ltd., which held that only those investments yielding exempt income during the year should be considered for computing the disallowance. The Tribunal directed the AO to recompute the disallowance by excluding the investment in shares of Sesa Goa Ltd., which were treated as business income, thereby partly allowing the Assessee's appeal.3. Disallowance under Section 40(a) for non-deduction of TDS on foreign payments:The Assessee incurred supervision charges and professional fees abroad without deducting TDS, leading to disallowance under Section 40(a). The Tribunal noted that the retrospective amendment to Section 9(1) by the Finance Act, 2010, which deemed such payments as accruing in India, came into effect after the payments were made. Citing the ITAT Panaji Bench decision in ACIT vs. Ajit Ramakant Phatarpekar, the Tribunal held that the Assessee could not be penalized for non-compliance with a law that was not in force at the time of payment. Thus, the Tribunal allowed the Assessee's appeal on this ground.4. Nature of expenditure on community development as capital or revenue:The Assessee claimed deductions for contributions towards the construction of a school building and repairs of temples, arguing these were revenue expenditures incurred for business expediency. The Tribunal agreed, citing the ITAT Panaji Bench decision in M/s Prime Mineral Exports Pvt. Ltd. and the Supreme Court's judgment in L.H. Sugar Factory & Oil Mills (P) Ltd. vs. CIT. The Tribunal held that such expenditures, aimed at maintaining cordial relations with the local community, were allowable as revenue expenditures since no capital asset was acquired by the Assessee.5. Allowability of foreign exchange fluctuation loss on EEFC account:The Revenue disallowed the foreign exchange fluctuation loss on the EEFC account, considering it notional and contingent. The Tribunal, however, upheld the Assessee's claim, referencing the Supreme Court's decision in CIT vs. Woodward Governor India (P) Ltd. and the Bombay High Court's ruling in CIT vs. Vinergy International Pvt. Ltd. The Tribunal concluded that the loss, being on revenue account and in accordance with AS-11, was allowable, and the CBDT Circular No. 3/2010 did not apply as the loss was not related to derivative transactions.Conclusion:The Tribunal's consolidated order addressed multiple issues, providing detailed reasoning for each decision. The Assessee's appeal was partly allowed, and the Revenue's appeal was dismissed, with specific directions for recomputation and allowance of certain claims.