| COURT: | ITAT Kolkata |
| CORAM: | Mahavir Singh (JM), N. V. Vasudevan (JM) |
| SECTION(S): | 14A, 43(5), 50C, Rule 8D |
| GENRE: | Domestic Tax |
| CATCH WORDS: | capital gains, Disallowance u/s 14 & Rule 8D, foreign exchange loss, speculative loss |
| COUNSEL: | A. K. Tibrewal |
| DATE: | October 7, 2015 (Date of pronouncement) |
| DATE: | November 17, 2015 (Date of publication) |
| AY: | 2009-10 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 50C should not be invoked if difference between stamp value and declared consideration is nominal, S. 14A/ Rule 8D does not apply to share application money, Pure foreign exchange hedging transactions cannot be treated as speculative transactions | |
(i) In ACIT vs S.Suvarna Rekha in ITA No.743/Hyd/2009 dated 29.10.2010 the Hon’ble ITAT, Hyderabad took the view that if difference between valuation for the purpose of stamp duty and the sale consideration actually received by the assessee is 10% or less then the value actually received by the assessee should be adopted for the purpose of computing the long term capital gain. Though section 50C of the Act does not speak of any such variation in terms of percentage between value adopted for the purpose of stamp duty and the registration and the actual consideration received on transfer, keeping in view of the decision of the Hon’ble ITAT, Hyderabad Bench and keeping in view of the fact that the difference between the valuation for the stamp duty and the actual consideration received by the assessee is less than 2% we are of the view that addition sustained by CIT(A) should be deleted.
(ii) Share application money is only in the nature of an offer to buy shares made by the assessee. It is only after the offer is accepted by the company resulting in a concluded contract, the Assessee becomes the shareholder in a company. Till this time the Assessee becomes a shareholder, the assessee cannot have any rights to claim any dividend that may be declared by the company. In such circumstances we are of the view that while working out the average value of the investments u/r 8D(2)(iii) of the Rules the share application money should not be included. MSA Securities Services Pvt. Ltd. vs ACIT (Chennai) in ITA Nos.1523-1524/Mds/2012 dated 17.10.2012 and Rainy Investments P.Ltd vs ACIT in ITA No.5491/Mum/2011 dated 16.01.2013 followed)
(iii) It is clear that the forward contract in question was purely hedging transactions entered into by the Assessee to safeguard against loss arising out of fluctuation in foreign currency. Such transactions have been held in the following cases to be not speculative transactions falling within the ambit of Sec.43(5) of the Act, CIT Vs. Soorajmull Nagarmull (1981) 5 Taxman 289 (Cal), CIT Vs, Badridas Gauridu (P) Ltd., (2004) 134 Taxman 376 (Bom), CIT Vs. Friends and Friends Shipping Pvt.Ltd., Tax Appeal No.251 of 2010 dated 23.8.2011 and CIT Vs. Panchmahal Steel Ltd. Tax Appeal No.131 of 2013 dated 28.3.2013 by the Hon’ble Gujarat High Court.
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