{"id":116761,"date":"2010-03-15T00:00:00","date_gmt":"2010-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/oil-natural-gas-corp-ltd-tr-m-d-vs-commr-of-income-tax-dehradun-on-15-march-2010"},"modified":"2015-08-02T23:05:55","modified_gmt":"2015-08-02T17:35:55","slug":"oil-natural-gas-corp-ltd-tr-m-d-vs-commr-of-income-tax-dehradun-on-15-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/oil-natural-gas-corp-ltd-tr-m-d-vs-commr-of-income-tax-dehradun-on-15-march-2010","title":{"rendered":"Oil & Natural Gas Corp. Ltd. Tr. M.D vs Commr.Of Income Tax, Dehradun on 15 March, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Oil & Natural Gas Corp. Ltd. Tr. M.D vs Commr.Of Income Tax, Dehradun on 15 March, 2010<\/div>\n
Author: D Jain<\/div>\n
Bench: D.K. Jain, T.S. Thakur<\/div>\n
                                                                               REPORTABLE\n                  IN THE SUPREME COURT OF INDIA\n\n                  CIVIL APPELLATE JURISDICTION\n\n                  CIVIL APPEAL NO.7223 0F 2008\n\n\n\nOIL & NATURAL GAS CORPORATION LTD.,               --                  APPELLANT\nDEHRADUN THROUGH MANAGING DIRECTOR\n\n                                  VERSUS\n\nTHE COMMISSIONER OF INCOME TAX,                   --                RESPONDENT\nDEHRADUN\n\n                                          WITH\n                        [CIVIL APPEAL NOS.7224, 7225,\n                          7228, 7229 AND 7231 OF 2008]\n\n\n                                J U D G M E N T\n<\/pre>\n
D.K. JAIN, J.:\n<\/p>\n
1.In these appeals, essentially the following two questions arise<\/p>\n
for our consideration:-\n<\/p>\n<\/p>\n
    (i)     Whether on the facts and circumstances of the case,
\n            the    additional        liability         arising      on    account     of
\n            fluctuations in the rate of exchange in respect of
\n            loans taken for revenue purposes could be allowed as
\n            deduction under Section 37(1) of the Income Tax, Act,
\n            1961 (for short “the Act”) in the year of fluctuation
\n            in    the    rate   of    exchange         or   whether      the   same   is
\n            allowable      only      in   the    year       of   repayment     of   such
\n            loans?<\/p><\/blockquote>\n
    (ii)    Whether the Assessee is entitled to adjust the actual
\n            cost of imported capital assets acquired in foreign
\n            currency on account of fluctuation in the rate of
\n               exchange at each balance-sheet date, pending actual
\n               payment     of    the    varied      liability?      (only    in     C.A.\n<\/p>\n
               No.7228\/2008 – Assessment Year 1991-92)<\/p>\n
2.As, in our opinion, both the afore-noted issues are no more res
\nintegra, we deem it unnecessary to state the facts in detail and<\/p>\n
with a view to appreciate the controversy, a brief reference to the<\/p>\n
foundational      facts    in   respect      of    assessment    year     1991-92    would<\/p>\n
suffice.    These are:\n<\/p>\n<\/p>\n
     The appellant, hereinbefore referred to as “the Assessee”, is a<\/p>\n
public sector undertaking, substantially owned by the Government of<\/p>\n
India. It is engaged in capital intensive exploration and production<\/p>\n
of petroleum products for which it has to heavily depend on foreign<\/p>\n
loans to cover its expenses, both capital and revenue, on import of<\/p>\n
machinery    on     capital     account      and    for   payment    to     non-resident<\/p>\n
contractors in foreign currency for various services rendered.                         The<\/p>\n
Assessee had made three types of foreign exchange borrowings — (i)<\/p>\n
in revenue account; (ii) in capital account and (iii) for general<\/p>\n
purposes, partly utilised in revenue account and partly in capital<\/p>\n
account.       As    per    terms      and    conditions     of     foreign       exchange<\/p>\n
borrowings, some of the loans became re-payable in the year under<\/p>\n
consideration but date of repayment of some loans fell after the end<\/p>\n
of the relevant accounting year.                  The Assessee revalued in Indian<\/p>\n
currency all its foreign exchange loans in revenue account, capital<\/p>\n
account as also in its general purposes account, outstanding as on<\/p>\n
31st March, 1991 and claimed the difference between their respective
\namounts in Indian currency as on 31st March, 1990 and on 31st March,<\/p>\n
1991 as revenue loss under Section 37(1) of the Act in respect of<\/p>\n
loans used in revenue account, and also took into consideration the<\/p>\n
similar difference in foreign exchange on capital account loans as<\/p>\n
an increased liability under Section 43A of the Act for the purposes<\/p>\n
of depreciation.           The foreign exchange loss incurred by the Assessee<\/p>\n
in the revenue account on account of repayment of these loans made<\/p>\n
in the year under consideration was allowed by the Assessing Officer<\/p>\n
as a deduction under Section 37(1) of the Act, and he also took into<\/p>\n
consideration an increased liability of foreign exchange loans taken<\/p>\n
in   capital       account    and    repaid       in   the   accounting      year,      for   the<\/p>\n
purposes      of    depreciation,         under    Section      43A    of   the    Act.       He,<\/p>\n
however,      did    not     allow   to    the     Assessee     its    claim      for   foreign<\/p>\n
exchange loss claimed on such foreign currency loans both in revenue<\/p>\n
account and in capital account which were outstanding on the last<\/p>\n
day of the accounting year under consideration and were as per terms<\/p>\n
of borrowings repayable after the end of the relevant accounting<\/p>\n
year.    Similar treatment was given to the foreign exchange loans<\/p>\n
taken   for    general       purposes,      used       partly   in    revenue     account     and<\/p>\n
partly in capital account.                Thus, the Assessee’s claim for foreign<\/p>\n
exchange loss\/increased liability on revaluation of these foreign<\/p>\n
exchange loans at the end of the accounting year under consideration<\/p>\n
both in the revenue account and capital account as also on loans<\/p>\n
used partly in revenue account and partly in capital account, made<\/p>\n
on the ground that it had followed mercantile system of accounting<\/p>\n
in this regard, was disallowed by the Assessing Officer.                             According
\nto   the   Assessing      Officer,     such    a   loss   could    be   allowed    to   the<\/p>\n
Assessee on discharge of liability at the time of actual repayment<\/p>\n
of these loans.\n<\/p>\n<\/p>\n
3.Aggrieved, the Assessee preferred appeals before the Commissioner
\nof Income Tax (Appeals).              Insofar as Assessee’s claim for foreign<\/p>\n
exchange loss in revenue account was concerned, the Commissioner<\/p>\n
(Appeals) affirmed the view taken by the Assessing Officer on the<\/p>\n
ground     that    it    was   a   notional    liability     and   the    same    had   not<\/p>\n
crystallised or accrued in the relevant assessment year.                          However,<\/p>\n
as   regards      the    adjustment     for    increased    liability      made    by   the<\/p>\n
Assessee for the purposes of Section 43A of the Act in respect of<\/p>\n
foreign exchange loans in capital account, which were outstanding as<\/p>\n
on 31st March, 1991, the Commissioner accepted the stand of the<\/p>\n
Assessee and directed the Assessing Officer to allow the benefit of<\/p>\n
such increased liability for computation of depreciation allowance<\/p>\n
on plant and machinery purchased out of such foreign exchange loans<\/p>\n
for the assessment year under consideration.\n<\/p>\n<\/p>\n
4.Being dissatisfied, both the Assessee as well as the Revenue
\ncarried the matter in further appeals to the Income Tax Appellate<\/p>\n
Tribunal (for short “the Tribunal”). The Tribunal observed that the<\/p>\n
method     of     accounting       adopted    by   the    Assessee      right    from   the<\/p>\n
assessment        year    1982-83      is     mercantile    system;       it     has    been<\/p>\n
consistently claiming loss suffered by it on account of fluctuation<\/p>\n
in foreign exchange rates on accrual basis; in respect of assessment<\/p>\n
years 1982-83 to 1986-87, the Assessee’s claim on this account had
\nbeen   allowed   by    the     Assessing    Officer     himself;   in   respect    of<\/p>\n
assessment year 1997-98, the Assessee had shown a gain of Rs.293.37<\/p>\n
crores on account of fluctuation in foreign exchange because the<\/p>\n
Indian Rupee had appreciated as compared to the foreign currency and<\/p>\n
that the said amount was taxed as Assessee’s income.                    Taking all<\/p>\n
these factors into consideration, the Tribunal held that the loss<\/p>\n
claimed   by   the    Assessee    on    revenue   account   was    allowable   under<\/p>\n
Section 37(1) of the Act.              The appeal preferred by the Revenue on<\/p>\n
the question whether the Assessee was entitled to adjust the actual<\/p>\n
cost of imported assets acquired in foreign currency on account of<\/p>\n
fluctuation in the rate of exchange, in terms of Section 43A of the<\/p>\n
Act, was also dismissed.\n<\/p>\n<\/p>\n
5.The Revenue took the matter in further appeal to the High Court.<\/p>\n
By a common judgment pertaining to the assessment years 1991-92 to<\/p>\n
1994-95 and 1997-98, the High Court has reversed the decision of the<\/p>\n
Tribunal on both the issues.            Terming the order of the Tribunal as<\/p>\n
perverse, having been passed without any material on record and<\/p>\n
against the statutory provisions, the High Court has held that the<\/p>\n
foreign   exchange      loss     claimed    by    the   Assessee    being   only   a<\/p>\n
contingent and notional liability, it was not allowable as deduction<\/p>\n
under Section 37(1) of the Act.              Insofar as the applicability of<\/p>\n
Section 43A of the Act was concerned, the High Court observed that<\/p>\n
the said provision is confined only to those liabilities which have<\/p>\n
become due as per the terms and conditions of written agreement<\/p>\n
between the Assessee and the foreign creditors but since in the
\npresent case, no such agreement was made available by the Assessee<\/p>\n
at any stage of the proceedings, the claim of the Assessee was not<\/p>\n
justified.           According to the High Court, the variation in foreign<\/p>\n
exchange was neither quantified, nor it had become due or repaid<\/p>\n
and, therefore, deductions on that account had been allowed by the<\/p>\n
Tribunal without application of mind and were, therefore, illegal.<\/p>\n
Being aggrieved by the said decision, the Assessee is before us in<\/p>\n
these appeals.\n<\/p>\n
6.Mr. S. Ganesh, learned senior counsel appearing on behalf of the
\nAssessee, submitted that in view of the decision of this Court in
\nCommissioner of Income-Tax Vs. Woodward Governor India P. Ltd.1, the
\ndecision of the High Court cannot be sustained. Learned counsel
\nalso argued that in view of the fact that the Committee on disputes
\nhad expressly refused permission to the Revenue to pursue appeals
\nbefore the High Court, in the light of the decisions of this Court
\nin Oil & Natural Gas Commission & Anr. Vs. Collector of Central
\nExcise2 and Mahanagar Telephone Nigam Ltd. Vs. Chairman, Central
\nBoard, Direct Taxes & Anr.3, the High Court should not have
\nentertained the appeals preferred by the Revenue.<\/p>\n
7.Mr.        B.     Bhattacharya,       learned       Additional     Solicitor     General,<\/p>\n
appearing          on   behalf    of    the    Revenue,   on   the   other   hand,    while<\/p>\n
candidly          admitting      that   both    the   issues   raised   in   the   present<\/p>\n
appeals, have been decided by this Court in Woodward’s case (supra),<\/p>\n
submitted that in view of the finding by the High Court that no<\/p>\n
agreement between the Assessee and the foreign creditors had been<\/p>\n
placed on record, the High Court was correct in law in allowing<\/p>\n
Revenue’s appeals.\n<\/p>\n
1<\/span>
\n    2009 (312) I.T.R. 254 (SC)
\n2<\/span>
\n    (1992) Supp (2) SCC 432
\n3<\/span>
\n    2004 (267) I.T.R. 647 (SC)\n<\/p>\n
8.At the outset, we may note that although in view of the orders
\npassed by the Committee on disputes, advising the Revenue not to<\/p>\n
file appeals against Tribunal’s orders, we find some substance in<\/p>\n
the   objection    of    learned   counsel      for    the    Assessee     about     the<\/p>\n
maintainability of Revenue’s appeals before the High Court but as we<\/p>\n
have heard learned counsel for the parties on merits of the appeals,<\/p>\n
at this stage, we do not propose to go into this question. We also<\/p>\n
reject at the threshold the submission of learned counsel for the<\/p>\n
Revenue that the claim of the Assessee qua capital account deserved<\/p>\n
to be disallowed because no agreement between the Assessee and the<\/p>\n
foreign creditors,       as   observed   by    the    High   Court   was    placed on<\/p>\n
record, because no such objection was raised by the Revenue at any<\/p>\n
stage of the assessment proceedings nor had the Assessing Officer<\/p>\n
rejected the claim of the Assessee on that ground.<\/p>\n
9.Thus, the questions surviving for determination are :- (i) that<\/p>\n
when the Assessee maintained their accounts on mercantile system of<\/p>\n
accounting and there was no finding by the Assessing Officer on the<\/p>\n
correctness or completeness of the account and that the Assessee had<\/p>\n
complied with the accounting standards, laid down by the Central<\/p>\n
Government, can the “loss” suffered by it on account of fluctuation<\/p>\n
in the rate of foreign exchange as on the date of balance-sheet be<\/p>\n
allowed    as     expenditure      under      Section        37(1)    of     the     Act<\/p>\n
notwithstanding the fact that the liability had not been actually<\/p>\n
discharged in the year in which the fluctuation in the rate of<\/p>\n
foreign   exchange      had   occurred   and    (ii)    whether      on    account    of
\nfluctuation in the rate of exchange at the end of the previous year,<\/p>\n
the Assessee      is    entitled    to   adjust    the   actual    cost   of    imported<\/p>\n
assets acquired in foreign currency?\n<\/p>\n<\/p>\n
10.Having carefully perused the decision of this Court in Woodward’s
\ncase (supra), we are of the opinion that both the issues stand<\/p>\n
concluded    by   the    said    decision.        Dealing   with    the   said      issues<\/p>\n
extensively, speaking for the Bench, S.H. Kapadia, J. summarised the<\/p>\n
following factors which should be taken into account in order to<\/p>\n
find out if an expenditure on account of fluctuation in the foreign<\/p>\n
currency rates, when the Assessee is following mercantile system of<\/p>\n
accounting, is deductible:\n<\/p>\n<\/p>\n
     (i)      whether      the     system   of    accounting   followed        by   the
\n              assessee is the mercantile system, which brings in
\n              the debits of the amount of expenditure for which a
\n              legal liability has been incurred even before it is
\n              actually       disbursed       and    credits,       what   is        due,
\n              immediately it becomes due even before it is actually
\n              received;\n<\/p><\/blockquote>\n
     (ii)     whether the same system is followed by the assessee
\n              from the very beginning and if there was a change in
\n              the system, whether the change was bona fide;\n<\/p><\/blockquote>\n
     (iii)    whether the assessee has given the same treatment                      to
\n              losses claimed to have accrued and to the gains that
\n              may accrue to it;\n<\/p><\/blockquote>\n
     (iv)     whether the assessee has been consistent and definite
\n              in making entries in the account books in respect of
\n              losses and gains;\n<\/p><\/blockquote>\n
       (v)          whether the method adopted by the assessee for making
\n                    entries in the books both in respect of losses and
\n                    gains   is   as    per     nationally    accepted         accounting
\n                    standards;\n<\/p>\n
       (vi)         whether the system adopted by the assessee is fair
\n                    and reasonable or is adopted only with a view to
\n                    reducing the incidence of taxation.\n<\/p>\n
Applying these factors on the facts of that case, it was held that<\/p>\n
the “loss” suffered by the Assessee, maintaining accounts regularly<\/p>\n
on mercantile system and following accounting standards prescribed<\/p>\n
by   the     Institute      of   Chartered     Accountants       of   India    (ICAI),     on<\/p>\n
account of fluctuation in the rate of foreign exchange as on the<\/p>\n
date of balance-sheet was an item of expenditure under Section 37(1)<\/p>\n
of     the    Act,    notwithstanding        that   the    liability     had     not   been<\/p>\n
discharged in the year in which the fluctuation in the rate of<\/p>\n
foreign exchange occurred.\n<\/p>\n<\/p>\n
11.We are of the opinion that the ratio of the said decision, with<\/p>\n
which we are in respectful agreement, squarely applies to the facts<\/p>\n
at hand and, therefore, the loss claimed by the Assessee on account<\/p>\n
of fluctuation in the rate of foreign exchange as on the date of<\/p>\n
balance-sheet is allowable as expenditure under Section 37(1) of the<\/p>\n
Act.\n<\/p>\n<\/p>\n
12.On the question whether an Assessee is entitled to adjust the
\nactual       cost    of   imported    assets    acquired    in    foreign     currency     on<\/p>\n
account of fluctuation in the rate of exchange at each balance-sheet<\/p>\n
date, pending actual payment of the varied liability with reference
\nto unamended Section 43A of the Act, in Woodward’s case (supra), the<\/p>\n
Court observed thus:\n<\/p>\n<\/p>\n
     “…what triggers the adjustment in the actual cost of the
\n     assets, in terms of the unamended section 43A of the 1961
\n     Act is the change in the rate of exchange subsequent to the
\n     acquisition of asset in foreign currency.        The section
\n     mandates that at any time there is change in the rate of
\n     exchange, the same may be given effect to by way of
\n     adjustment of the carrying cost of the fixed assets acquired
\n     in foreign currency. But for section 43A which corresponds
\n     to paragraph 10 of AS-II such adjustment in the carrying
\n     amount of the fixed assets was not possible, particularly in
\n     the light of section 43(1).       The unamended section 43A
\n     nowhere required as condition precedent for making necessary
\n     adjustment in the carrying amount of the fixed asset that
\n     there should be actual payment of the increased\/decreased
\n     liability as a consequence of the exchange variation. The
\n     words used in the unamended section 43A were “for making
\n     payment” and not “on payment” which is now brought in by
\n     amendment to section 43A, vide the Finance Act, 2002.”<\/p><\/blockquote>\n
     Opining that the amendment of Section 43A of the Act by the<\/p>\n
Finance Act, 2002 with effect from 1st April, 2003 is amendatory and<\/p>\n
not clarificatory and would thus, apply prospectively, the Court<\/p>\n
explained that under the unamended Section 43A, adjustment to the<\/p>\n
actual cost takes place on the happening of change in the rate of<\/p>\n
exchange, whereas under the amended Section 43A, the adjustment in<\/p>\n
the actual cost is made on cash basis.        In other words, under the<\/p>\n
unamended   Section    43A,   “actual   payment”   was   not   a   condition<\/p>\n
precedent for making necessary adjustment in the carrying cost of<\/p>\n
the fixed asset acquired in foreign currency but under the amended<\/p>\n
Section 43A, with effect from 1st April, 2003, such payment of the<\/p>\n
decreased\/enhanced liability on account of fluctuation in foreign
\nexchange   rate       has   been   made   a   condition            precedent            for     making<\/p>\n
adjustment in the carrying amount of the fixed asset.<\/p>\n
13.We are of the opinion that the decision of this Court in
\nWoodward’s     case    (supra)     settles    the     second         issue         as    well.        We<\/p>\n
respectfully concur with the same and hold that all the assessment<\/p>\n
years in question being prior to the amendment in Section 43A of the<\/p>\n
Act with effect from 1st April, 2003 the Assessee would be entitled<\/p>\n
to adjust the actual cost of the imported capital assets, acquired<\/p>\n
in   foreign   currency,      on   account    of     fluctuation              in     the       rate   of<\/p>\n
exchange at each of the relevant balance-sheet dates pending actual<\/p>\n
payment of the varied liability.\n<\/p>\n<\/p>\n
14.Resultantly, all the appeals are allowed; the impugned orders are
\nset aside and both the questions formulated in para 1 (supra) are<\/p>\n
answered in favour of the Assessee, leaving the parties to bear<\/p>\n
their own costs.\n<\/p>\n<\/p>\n
                                                        …………………………….J.\n<\/p>\n
                                              (D.K. JAIN)<\/p>\n
                                                       …………………………….J.\n<\/p>\n
                                              (T.S. THAKUR)
\nNEW DELHI;\n<\/p>\n
MARCH 15, 2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Oil & Natural Gas Corp. Ltd. Tr. M.D vs Commr.Of Income Tax, Dehradun on 15 March, 2010 Author: D Jain Bench: D.K. Jain, T.S. Thakur REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7223 0F 2008 OIL & NATURAL GAS CORPORATION LTD., — APPELLANT DEHRADUN THROUGH MANAGING […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-116761","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nOil & Natural Gas Corp. Ltd. Tr. M.D vs Commr.Of Income Tax, Dehradun on 15 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/oil-natural-gas-corp-ltd-tr-m-d-vs-commr-of-income-tax-dehradun-on-15-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Oil & Natural Gas Corp. Ltd. Tr. 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