WIPRO FINANCE LTD. versus COMMISSIONER OF INCOME TAX
[2022] 2 S.C.R. 1146, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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WIPRO FINANCE LTD.
v.
COMMISSIONER OF INCOME TAX
(Civil Appeal No. 6677 of 2008)
APRIL 12, 2022
[A. M. KHANWILKAR, ABHAY S. OKA AND
C. T. RAVIKUMAR, JJ.]
Income Tax Act, 1961: s.37 – Disallowance – Loan borrowed
by assessee in foreign currency for expanding its primary business
of leasing and hire purchase of capital equipment to existing Indian
enterprise – While repaying the loan, due to the difference of rate
of foreign exchange, the assessee had to pay higher amount,
resulting in loss to the appellant –Claim for deduction on account
of loss of income owing to exchange fluctuation – Held: Transaction
of loan was in nature of borrowing money which was necessary for
carrying on its business of financing – It was the activity concerning
the business of the assesseeand not for creation or acquisition of
asset by appellant for its primary business – Hence, assessee was
entitled to claim deduction of entire expenditure or loss suffered in
connection with such a transaction in terms of s.37 of the 1961 Act
– With respect to the fresh claim set up by assessee before ITAT that
revenue expenditure of certain amount was erroneously capitalized
in returns – As no objection was taken by department before ITAT,
hence, cannot be contradicted at this stage.
India Cements Ltd. v. Commissioner of Income Tax,
Madras AIR 1966 SC 1053 : [1966] 2 SCR 944; Empire
Jute Co. Ltd. v. Commissioner of Income Tax
(1980) 4
SCC 25 : [1980] 3 SCR 1370 – relied on.
National Thermal Power Co. Ltd. v. Commissioner of
Income Tax (1997) 7 SCC 489; Goetze (India) Ltd. v.
Commissioner of Income Tax [2006] 284 ITR 323;
Assistant Commissioner of Income Tax, Vadodara v.
Elecon Engineering Company Limited (2010) 4 SCC
482 : [2010] 3 SCR 108 – referred to.
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Case Law Reference
(1997) 7 SCC 489
referred to
Para 3
[1966] 2 SCR 944
relied on
Para 7
[1980] 3 SCR 1370 
relied on
Para 7
[2006] 284 ITR 323
referred to
Para 11
[2010] 3 SCR 108
referred to
Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6677
of 2008.
From the Judgment and Order dated 02.04.2008 of the High Court
of Karnataka at Bangalore in I.T.A. No.633 of 2014.
S. Ganesh, Arijit Prasad, Preetesh Kapur, Sr. Advs., Tejveer
Bhatia, K. R. Pradeep, Rohan Swarup, Gaurav Sharma, Abhinav Mukerji,
Ms. Archana Sachdeva, Ms. Pragati Agrawal, Vikramjit Banerjee,
Shailesh Madiyal, Siddhartah Sinha, Jauhri Prakash, Tathagat, Nring C.
Zehiang, Abhishek Mahajan, Prashant Rawat, O. P. Shukla, Kumar
Shashank, Raj Bahadur Yadav, Senthil Jagadeesan, Ms. Sonakshi Malhan,
Advs. for the appearing parties.
The following Order of the Court was passed:
ORDER
1. This appeal takes exception to the judgment and order dated
2.4.2008 passed by the Division Bench of the High Court of Karnataka
at Bengaluru in I.T.A. No. 633/2004.
2. Briefly stated, the appellant company submitted returns of
income on 29.11.1997 for the assessment year 1997-1998, mentioning
loss of income, amongst others, owing to exchange fluctuation of
Rs.1,10,53,909/-. After processing the return under Section 143(1)(a) of
the Income Tax Act, 19611, the assessment was completed on 16.3.2000.
As against the loss declared by the appellant due to exchange fluctuation,
the assessment was concluded by
positive taxable income. Against that
decision, the matter was carried in appeal by the appellant before the
Commissioner of Income Tax (Appeals)2 and eventually, by way of appeal
before the Income Tax Appellate Tribunal3 being I.T.A. No. 795 (Bang)/
2000.
1 for short, “the 1961 Act”
2 for short, “CIT(A)”
3 for short, “ITAT”
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3. In the appeal before the ITAT, the appellant not only claimed
deduction in respect of loss of Rs.1,10,53,909/- arising on account of
exchange fluctuation, but also set up a fresh claim in respect of revenue
expenses to the tune of Rs.2,46,04,418/-, erroneously capitalised in the
returns. The ITAT entertained this fresh claim set forth by the appellant
and recorded in its judgment that the department’s representative had
no objection in that regard. Additionally, the ITAT adverted to the decision
of this Court in National Thermal Power Co. Ltd. vs. Commissioner
of Income Tax4 in support, for entertaining fresh claim of the appellant
in exercise of powers under Section 254 of the 1961 Act. The ITAT, in
the first place, reversed the finding given by CIT(A) regarding application
of Section 43A of the 1961 Act. The ITAT opined that the said provision
had no application to the fact situation of the present case. Having said
that, it then proceeded to consider the question whether the loss suffered
by the appellant owing to exchange fluctuation can be regarded as
revenue expenditure or capital expenditure incurred by the appellant,
and answered the same in favour of the appellant by holding that it
would be a case of expenditure on revenue account and an allowable
deduction. The ITAT answered the same in the following words: -
“….. So far as the argument whether the impugned expenditure
or loss is revenue or capital in
nature we find that the funds
borrowed were utilised for the purposes of regular finance business
carried on by the assessee. Such an income has also been offered
for taxation and accepted by the department. Quantification of
exchange fluctuation loss has been done as per rule 115 of the I T
Rules. Said rule must be applied in computing the total income of
the assessee had held by the Supreme Court in CIT vs. Chowgule
Co Ltd. – 218 ITR 384. Further the exchange fluctuation loss
is an expenditure incidental to carrying on of business and
comes within the purview of section 37 of the Act as the
same is incurred wholly and exclusively for the purposes
of business. It is nobody’s case that the funds borrowed in
foreign exchange have been diverted for non-business
purposes. In such a case the decision of the Supreme Court in
India Cement Case (supra) fully covers the issue in favour of the
assessee. We also find that in this case, assessee’s claim satisfies
all the tests laid down by Supreme Court in 124 ITR 1 extracted
4 (1997) 7 SCC 489
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supra. In this case entire borrowal of loan and the utilisation of
the same, is in trading operations of the company more profitably
and the fixed capital in this case is untouched. Hence the
expenditure is on revenue account and allowable.
We also find the loss incurred by the assessee cannot be
treated as contingent in nature as the loss on account of foreign
exchange fluctuation has been quantified in terms of rule 115 of
IT Rules and further the liability is real as per terms of the
agreement with CDC. Just because the liability is payable in future
does not covert the actual liability into contingent liability as held
by the Supreme Court in Calcutta Co Ltd. vs. CIT – 37 ITR 1 and
Bharat Earth Movers Ltd. vs. CIT – 245 ITR 428. Similar view
has been expressed by ITAT special bench in ONGC case 83
ITR 51 (SB). Looking from any angle the claim on this issue is
allowable. Accordingly, we allow the entire claim of Rs.3,56,57,727/
-. We direct the AO to do so. This issue is held in favour of the
assessee.”
(emphasis supplied)
4. The matter was carried before the High Court by the
department. Amongst others, following questions were formulated for
consideration as substantial questions of law concerning subject deduction
claimed by the appellant. The same read thus: -
“(3) Whether on facts and in the circumstances of the case, the
Tribunal is justified in deleting the dis-allowance of claim to the
tune of Rs.1,10,53,509/- for the assessment year 1997-98
in respect
of exchange fluctuation that was made by the Assessing Officer?
(in ITA No. 633/2004 only).
(4) Whether on facts and in the circumstances of the case, the
Tribunal is justified in allowing the additional claim of
Rs.2,46,04,418.00 for the assessment year 1997-98 holding that
the capitalisation of the said sum is to be treated as revenue
expenses? (in ITA No. 633/04 only).”
The High Court vide impugned judgment has reversed the view
taken by the ITAT, mainly observing that the ITAT had not recorded
sufficient reasons in support of its conclusion and in any case, the
conclusion was without any basis.
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5. We have heard Mr. S. Ganesh, learned senior counsel for the
appellant and Mr. Vikramjit Banerjee, learned Additional Solicitor General
appearing for the respondent.
6. The broad undisputed relevant facts, as can be culled out from
the record are that the appellant entered into a loan agreement with one
Commonwealth Development Corporation having its registered office
at England in the United Kingdom, for borrowing amount to carry on its
project described in Schedule 1 to the agreement - for expanding its
primary business of leasing and hire purchase of capital equipment to
existing Indian enterprises. Schedule 1 of the agreement reads thus: -
“SCHEDULE 1
(referred to in Recital A)
Description of the Project
The Project consists of the financing by the Company of the
acquisition of plant, machinery and equipment to be used in its
leasing business in accordance with the applicable laws and
regulations of India and the Company’s Memorandum and Articles
of Association.”
The loan was obtained in foreign currency (5 million pounds
sterling). However, while repaying the loan, due to the difference of rate
of foreign exchange, the appellant had to pay higher amount, resulting in
loss to the appellant. Indeed, the loan amount was utilised by the appellant
for financing the existing Indian enterprises for procurement of capital
equipment on hire purchase or lease basis. The fact remains that the
activity of financing by the
appellant to the existing Indian enterprises
for procurement or acquisition of plant, machinery and equipment on
leasing and hire purchase basis, is an independent transaction or activity
being the business of the appellant.
7. As regards, the transaction of loan between the appellant and
Commonwealth Development Corporation, the same was in the nature
of borrowing money by the appellant, which was necessary for carrying
on its business of financing. It was certainly not for creation of asset of
the appellant as such or acquisition of asset from a country outside India
for the purpose of its business. In such a scenario, the appellant would
be justified in availing deduction of entire expenditure or loss suffered by
it in connection with such a transaction in terms of Section 37 of the Act.
For, the loan is wholly and exclusively used for the purpose of business
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of financing the existing Indian enterprises, who in turn, had to acquire
plant, machinery and equipment to be used by them. It is a different
matter that they may do so because of the leasing and hire purchase
agreement with the appellant. That would be, nevertheless, an activity
concerning the business of the appellant. In that view of the matter, the
ITAT was right in answering the claim of the appellant in the affirmative,
relaying on the dictum of this Court in India Cements Ltd. vs.
Commissioner of Income Tax, Madras5. The exposition in this decision
has been elaborated in the subsequent decision of this Court in Empire
Jute Co. Ltd. vs. Commissioner of Income Tax6.
8. The ITAT has extracted the relevant portion of the decision in
India Cements Ltd.7, which reads thus: -
“7. ….. where there is no express prohibition, an outgoing, by
means of which an assessee procures the use of a thing by which
it makes a profit, is deductible from the receipts of the business to
ascertain taxable income. …..
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16. ….. the loan obtained is not an asset or advantage of an
enduring nature….. the expenditure was made for securing the
use of money for a certain period … and it is irrelevant to consider
the object with which the loan was obtained. …..
17. ….. the act of borrowing money ….. was not incidental to the
carrying on of a business. …..”
Similarly, the exposition in the case of Empire Jute Co. Ltd.8 is
also extracted by the ITAT, which reads thus: -
“5. ….. it is not a universally true proposition that what may be
capital receipt in the hands of the payee must necessarily be capital
expenditure in relation to the payer. The fact that a certain payment
constitutes income or capital receipt in the hands of the recipient
is not material in determining whether the payment is revenue or
capital disbursement qua the payer. …..
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5 AIR 1966 SC 1053
6 (1980) 4 SCC 25
7 supra at footnote No. 5
8 supra at footnote No. 6
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8. ….. There may be cases where expenditure, even if incurred
for obtaining advantage of enduring benefit, may, nonetheless, be
on revenue account and the test of enduring benefit may break
down. It is not every advantage of enduring nature, acquired by
an assessee that brings the case within the principle laid down in
this test. What is material to consider is the nature of the
advantage in a commercial sense and it is only where the
advantage is in the capital field that the expenditure would
be disallowable on an application of this test. If the
advantage consists merely in facilitating the assessee’s
trading operations or enabling the management and conduct
of the assessee’s business to be carried on more efficiently
or more profitably while leaving the fixed capital untouched,
the expenditure would be on revenue account, even though
the advantage may endure for an indefinite future. The test
of enduring benefit is therefore not a certain or conclusive test
and it cannot be applied blindly and mechanically without regard
to the particular facts and circumstances of a given case. …..
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11. ….. “What is an outgoing of capital and what is an outgoing
on account of revenue depends on what the expenditure is
calculated to effect from a practical and business point of view
rather than upon the juristic classification of the legal rights, if
any, secured, employed or exhausted is the process.”
The question
must be viewed in the larger context of
business necessity or expediency. …..”
(emphasis supplied)
9. A priori, we are of the considered opinion that the analysis done
by the ITAT and the conclusion arrived at in respect of the subject claim
of the appellant being the correct approach consistent with the exposition
of this Court, needs to be upheld. In our opinion, the High Court missed
the relevant aspects of the analysis of the ITAT concerning the fact
situation of the present case. As a matter of fact, the High Court has not
even adverted to the aforementioned reported decisions, much less its
usefulness in the present case.
10. The learned ASG appearing for the department had faintly
argued that since the appellant in its return had taken a conscious explicit
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plea with regard to the part of the claim being ascribable to capital
expenditure and partly to revenue expenditure, it was not open for the
appellant to plead for the first time before the ITAT that the entire claim
must be treated as revenue expenditure. Further, it was not open to the
ITAT to entertain such fresh claim for the first time. This submission
needs to be stated to be rejected. In the first place, the ITAT was conscious
about the fact that this claim was set up by the appellant for the first time
before it, and was clearly inconsistent and contrary to the stand taken in
the return filed by the appellant for the concerned assessment year including
the notings made by the officials of the appellant. Yet, the ITAT entertained
the claim as permissible, even though for the first time before the ITAT, in
appeal under Section 254 of the 1961 Act, by relying on the dictum of this
Court in National Thermal Power Co. Ltd.9. Further, the ITAT has also
expressly recorded the no objection given by the representative of the
department, allowing the appellant to set up the fresh claim to treat the
amount declared as capital expenditure in the returns (as originally filed),
as revenue expenditure. As a result, the objection now taken by the
department cannot be countenanced.
11. Learned ASG had placed reliance on the decision of this Court
in Goetze (India) Ltd. vs. Commissioner of Income Tax10 in support
of the objection pressed before us that it is not
open to entertain fresh
claim before the ITAT. According to him, the decision in National
Thermal Power Co. Ltd.11 merely permits raising of a new ground
concerning the claim already mentioned in the returns and not an
inconsistent or contrary plea or a new claim. We are not impressed by
this argument. For, the observations in the decision in Goetze (India)
Ltd.12 itself make it amply clear that such limitation would apply to the
“assessing authority”, but not impinge upon the plenary powers of the
ITAT bestowed under Section 254 of the Act. In other words, this decision
is of no avail to the department.
12. Learned counsel for the department had also relied on the
decision of this Court in Assistant Commissioner of Income Tax,
Vadodara vs. Elecon Engineering Company Limited13. This decision
is on the question of application of Section 43A of the 1961 Act.
9 supra at footnote No. 4
10 [2006] 284 ITR 323
11 supra at footnote No. 4
12 supra at footnote No. 10
13 (2010) 4 SCC 482
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Accordingly, the exposition in this decision will be of no avail to the fact
situation of the present case. For, we have already noticed that the
appellant had not acquired any asset from any country outside India for
the purpose of his business.
13. In view of the above, this appeal ought to succeed. The
impugned judgment and order of the High Court needs to be set aside
and instead, the decision of the ITAT dated 3.6.2004 in favour of the
appellant on the two questions examined by the High Court in the
impugned judgment, needs to be affirmed and restored. We order
accordingly.
14. As a result of allowing the entire claim of the appellant to the
tune of Rs.3,56,57,727/- being revenue expenditure, suitable amends will
have to be effected in the final assessment order passed by the assessing
officer for the concerned assessment year, thereby treating the
consequential benefits such as depreciation availed by the appellant-
assessee in relation to the stated amount towards exchange fluctuation
related to leased assets capitalised (being Rs.2,46,04,418/-), as unavailable
and non-est.
15. The appeal is allowed in the above terms with no order as to
costs.
Pending interlocutory applications, if any, stand disposed of.
Devika Gujral
Appeal allowed.