9911796707
TMI Blog2021 (10) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... e same cannot be deemed as operating in nature, since they are not critical to operationally activities of the business conducted by the assessee? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in directing the TPO to exclude both M/s. Bodhtree Consulting Ltd and Infosys Ltd., as comparables by holding that the said companies are functionally different from the assessee - company even when the said comparables satisfy all the qualitative and quantitative filters applied by the TPO and the Tribunal has selectively applied the modified qualitative filter to only few comparables challenged by the assessee? 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in allowing the market loss in respect of assessee's SEZ units by erroneously holding that the market loss is neither speculative nor contingent in nature when the said market loss is not allowable as per CBDT Instruction No.3/2010 dated 20.03.2010 as actual losses are allowable as non-speculative only if the transactions qualify as eligible derivative transactions under clause [d] of proviso to section 43 [5] of the Act? 4. Whether on the facts and in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is only concerned with the question of law and that too a substantial one, which has a well defined connotations as explained above and findings of facts arrived at by the Tribunal in these type of assessments like any other type of assessments in other regular assessment provisions of the Act, viz. Sections 143, 147 etc. are final and are binding on this Court. While dealing with these appeals under Section 260-A of the Act, we cannot disturb those findings of fact under Section 260-A of the Act, unless such findings are exfacie perverse and unsustainable and exhibit a total non-application of mind by the Tribunal to the relevant facts of the case and evidence before the Tribunal. Conclusion: 55. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option contracts and hence the same are deductible. The Tribunal has held that unless the assessee shows that there was some existing contract in respect of which it was likely to suffer a loss because of future price fluctuation and it was to safeguard against such loss that it entered into the forward contracts of sale, it could not claim the benefit of clause [2] of the proviso to Section 43[5]. This issue is covered by the Co-ordinate Bench of this Court in the case of The Commissioner of Income-Tax and Another V/s. M/s. Quest Global Engineering Services Pvt. Ltd., [ITA No.133/2015, D.D., 15.02.2021]. The relevant paragraphs of the said ruling are extracted hereunder: "12. After having noticed the relevant statutory provisions, we may advert to the facts of the case in hand. The assessee has entered into forward contract with the bank to buy or sell foreign exchange at an agreed price at a specified future date in order to hedge against possible future financial loss due to fluctuation in the rate of foreign currency. The Tribunal, inter alia, has held that foreign exchange forward contract means an agreement to exchange different currencies at a forward rate. It has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and same is not applicable for the Assessment Years 2008-09 and 2009-10 in view of well settled legal position that a circular which is beneficial in nature applies retrospectively but a circular which is oppressive has to be applied prospectively (SEE: CCE VS. MYSORE ELECTRICAL INDUSTRIES LTD (2006) 12 SCC 448). It is pertinent to note that the aforesaid has not been given effect of by several high courts namely in MUNJAL SHOVA LTD VS DCIT (2016) 382 ITR 555 (DELHI) and in CIT VS. VINERGY INTERNATIONAL PVT LTD ITA NO.376/2014 (BOMBAY HIGH COURT). The loss sustained by the assessee due to fluctuation in foreign exchange while implementing export contract is incidental to assessee's course of business, therefore, such a loss is not a speculative loss but a business loss. The aforesaid findings have not been demonstrated to be perverse. For the aforementioned reasons, the substantial questions of law No.1 and 3 are answered against the revenue and in favour of the assessee." In the light of the said decision, this substantial question of law is answered in favour of the assessee and against the Revenue. Re. substantial question of law No.4: 6. In view of the substantial ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
