IVF ADVISORS P.LTD, MUMBAI V. ASST CIT RG 10(1), MUMBAI

ITA 4798/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88272 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 05-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 20-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Assessee Lawyers: KANCHAN KAUSHAL DHANESH BAFNA
• Section: 43(5); 12

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI , !' # # # # $ % & , !' ' BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI AMIT SHUKLA, JUDICIAL MEMBER ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 IVF ADVISORS PRIVATE LIMITED, SUITE F9C, GRAND HYATT PLAZA, SANTACRUZ (EAST), MUMBAI 400 005 / VS. THE ASSTT. COMMISSIONER OF INCOME TAX, RANGE 10(1), MUMBAI. ') ./ *+ ./ PAN/GIR NO. : AABCI 5623F ( ), / APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY: S/SHRI KANCHAN KAUSHAL, DHANESH BAFNA & MS. CHANDNI SHAH -.), 0 / / RESPONDENT BY: SHRI ASGHAR ZAIN V.P 0 $1 / DATE OF HEARING :09.02.2015 23( 0 $1 / DATE OF PRONOUNCEMENT :13.02.2015 !% / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF LD. CIT(A)-21, MUMBAI DATED 16/4/2012 AND PERTAINING TO ASSESSMENT YEAR 2009-10. THE GRIEVANCE OF THE ASSESSEE READ AS UND ER: ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT CLAUSE (D) O F THE PROVISO TO SECTION 43(5) OF THE INCOME TAX ACT, 1961 (THE ACT ), WAS APPLICABLE TO THE TRANSACTIONS IN FOREIGN CURRENCY FUTURES ENTERED INTO BY THE APPELLANT AND THEREFORE THAT THE LOSS F ROM THESE TRANSACTIONS WAS NOT IN THE NATURE OF SPECULATION L OSS. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS AN INVESTMENT MANAGEMENT CONSULTANT. THE RETURN FOR T HE YEAR WAS FILED ON 25/09/2009 DECLARING TOTAL INCOME AT RS.NIL. TH E RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT. STATUTORY NOTICES WERE IS SUED AND SERVED UPON THE ASSESSEE. 3. WHILE PERUSING THE PROFIT AND LOSS ACCOUNT OF TH E ASSESSEE, THE AO NOTICED THAT THE ASSESSEE HAS CLAIMED A LOSS OF RS. 93,63,235/- ON ACCOUNT OF LOSS ON FOREIGN CURRENCY FUTURES. THE AO WA S OF THE STRONG BELIEF THAT THE LOSS CANNOT BE ALLOWED IN THE LIGHT OF THE PROVISIONS OF SECTION 43(5) OF THE INCOME TAX ACT, 1961 (THE ACT) R.W. CL AUSE (AC) OF SECTION 2 OF THE SECURITIES CONTRACTS (REGULATION) ACT 1956. WHILE DISALLOWING THE LOSS OF RS.93,63,235/-, THE AO HAS CONSIDERED THE R ELEVANT PROVISIONS OF SECTION 43(5) OF THE ACT AND SECTION 2(AC) OF THE SECURITIES CONTRACTS (REGULATION) ACT. 4. AGGRIEVED BY THIS FINDING OF THE AO THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A). IT WAS STRONGLY CONTENDED THAT THE CONTRACTS IN FOREIGN CURRENCY FUTURES WERE NOT SPECULATIVE TRAN SACTION. IT WAS FURTHER EXPLAINED THAT THE FOREIGN CURRENCY CONTRACT DOES N OT SATISFY THE CONDITION OF BEING A SPECULATIVE TRANSACTION AND, T HEREFORE, THE LOSS ON ACCOUNT OF FOREIGN CURRENCY FUTURES WAS NOT SPECUL ATIVE LOSS. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, LD. CIT (A) OBSERVED THAT THE ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 3 ASSESSEE IS NOT ENGAGED IN MANUFACTURING OR MERCHAN TING BUSINESS AND WAS ALSO A DEALER AND INVESTOR IN STOCK AND SHARES. THEREFORE, THE LOSS OF RS.93,63,235/- EARNED BY THE ASSESSEE ON ACCOUNT OF TRANSACTIONS IN FOREIGN CURRENCY FUTURE WAS NOT IN THE NATURE OF H EDGING LOSS, THEREFORE, SUCH LOSS WAS NOT EARNED IN THE COURSE OF GUARDING AGAINST LOSS THROUGH FUTURE PRICE FLUCTUATION IN RESPECT OF CONTRACTS FO R ACTUAL DELIVERY OF GOODS MANUFACTURED OR IN RESPECT OF STOCK OF SHARE ENTER ED INTO BY A DEALER. LD. CIT(A) WAS OF THE FIRM BELIEF THAT PROVISO (D) TO S ECTION 43(5) WAS NOT APPLICABLE. LD. CIT(A) CONFIRMED THE ASSESSMENT ORDER HOLDING THAT THE AO HAS CORRECTLY HELD THAT SUCH LOSS WAS A SPECULA TION LOSS WITHIN THE MEANING OF SECTION 43(5) OF THE ACT. AGGRIEVED BY THIS ASSESSEE IS BEFORE US. 5. LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HA S BEEN SUBMITTED BEFORE LOWER AUTHORITIES. LD. COUNSEL FOR THE ASS ESSEE DREW OUR ATTENTION TO PROVISO (D) OF SECTION 43(5) OF THE ACT AND ST ATED THAT THE REVENUE AUTHORITIES HAVE FAILED TO INTERPRET THE SAID PROV ISO. IT IS THE SAY OF THE LD. COUNSEL THAT THE CONTRACTS ENTERED BY THE ASSES SEE CANNOT BE SAID TO BE OF SPECULATIVE IN NATURE BECAUSE THE CONTRACTS HAVE ULTIMATELY BEEN SETTLED BY THE DELIVERY OF FOREX. 6. PER CONTRA , LD. DR STRONGLY SUPPORTED THE ORDER OF LD. CIT(A). 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE REVE NUE AUTHORITIES AND THE SUBMISSIONS MADE BY THE ASSESSEE IN THE LIG HT OF THE RELEVANT PROVISIONS OF THE IT ACT AND ALSO SECURITIES CONTR ACT REGULATION ACT, 1956. SECTION 43(5) OF THE I.T. ACT READ AS UNDER: ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 4 (5) 32'SPECULATIVE TRANSACTION' MEANS A TRANSACTIO N IN WHICH A CONTRACT FOR THE PURCHASE OR SALE OF ANY COMMODITY3 3, INCLUDING STOCKS AND SHARES, IS PERIODICALLY OR ULTIMATELY SE TTLED33 OTHERWISE THAN BY THE ACTUAL DELIVERY33 OR TRANSFER OF THE CO MMODITY OR SCRIPS: PROVIDED THAT FOR THE PURPOSES OF THIS CLAUSE (A) A CONTRACT IN RESPECT OF RAW MATERIALS OR MERC HANDISE ENTERED INTO BY A PERSON IN THE COURSE OF HIS MANUFACTURING OR MERCHANTING BUSINESS TO GUARD AGAINST LOSS THROUGH FUTURE PRICE FLUCTUATIONS IN RESPECT OF HIS CONTRACTS FOR ACTUAL DELIVERY OF GOO DS MANUFACTURED BY HIM OR MERCHANDISE SOLD BY HIM; OR (B) A CONTRACT IN RESPECT OF STOCKS AND SHARES ENT ERED INTO BY A DEALER OR INVESTOR THEREIN TO GUARD AGAINST LOSS IN HIS HOLDINGS OF STOCKS AND SHARES THROUGH PRICE FLUCTUATIONS; OR (C) A CONTRACT ENTERED INTO BY A MEMBER OF A FORWA RD MARKET OR A STOCK EXCHANGE IN THE COURSE OF ANY TRANSACTION IN THE NATURE OF JOBBING OR ARBITRAGE TO GUARD AGAINST LOSS WHICH MA Y ARISE IN THE ORDINARY COURSE OF HIS BUSINESS AS SUCH MEMBER; [OR ] (D) AN ELIGIBLE TRANSACTION IN RESPECT OF TRADING I N DERIVATIVES REFERRED TO IN CLAUSE [(AC)] OF SECTION 236 OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (42 OF 1956) CARRI ED OUT IN A RECOGNISED STOCK EXCHANGE;[OR] (E) AN ELIGIBLE TRANSACTION IN RESPECT OF TRADING I N COMMODITY DERIVATIVES CARRIED OUT IN A RECOGNIZED ASSOCIATION [ WHICH IS CHARGEABLE TO COMMODITIES TRANSACTION TAX UNDER CHA PTER VII OF THE FINANCE ACT, 2013 (17 OF 2013)] SHALL NOT BE DEEMED TO BE A SPECULATIVE TRANSACTION . [EXPLANATION.FOR THE PURPOSES OF THIS CLAUSE, THE EXPRESSIONS (I) 'ELIGIBLE TRANSACTION' MEANS ANY TRANSACTION, (A) CARRIED OUT ELECTRONICALLY ON SCREEN-BASED SYST EMS THROUGH A STOCK BROKER OR SUB-BROKER OR SUCH OTHER INTERMEDIA RY REGISTERED UNDER SECTION 12 OF THE SECURITIES AND EXCHANGE BOA RD OF INDIA ACT, 1992 (15 OF 1992) IN ACCORDANCE WITH THE PROVI SIONS OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (42 OF 1956) OR THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT, 1992 (1 5 OF 1992) OR ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 5 THE DEPOSITORIES ACT, 1996 (22 OF 1996) AND THE RUL ES, REGULATIONS OR BYE-LAWS MADE OR DIRECTIONS ISSUED UNDER THOSE A CTS OR BY BANKS OR MUTUAL FUNDS ON A RECOGNISED STOCK EXCHANGE; AND (B) WHICH IS SUPPORTED BY A TIME STAMPED CONTRACT N OTE ISSUED BY SUCH STOCK BROKER OR SUB-BROKER OR SUCH OTHER INTER MEDIARY TO EVERY CLIENT INDICATING IN THE CONTRACT NOTE THE UN IQUE CLIENT IDENTITY NUMBER ALLOTTED UNDER ANY ACT REFERRED TO IN SUB-CLAUSE (A) AND PERMANENT ACCOUNT NUMBER ALLOTTED UNDER THI S ACT; (II) 'RECOGNISED STOCK EXCHANGE' MEANS A RECOGNISE D STOCK EXCHANGE AS REFERRED TO IN CLAUSE (F) OF SECTION 23 8 OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (42 OF 1956) AND WHICH FULFILS SUCH CONDITIONS AS MAY BE PRESCRIBED AND NOTIFIED39 BY THE CENTRAL GOVERNMENT FOR THIS PURPOSE;] [EXPLANATION 2 FOR THE PURPOSES OF CLAUSE (E), TH E EXPRESSIONS (I) COMMODITY DERIVATIVE SHALL HAVE THE MEANING A S ASSIGNED TO IT IN CHAPTER VII OF THE FINANCE ACT, 2013; (II) ELIGIBLE TRANSACTION MEANS ANY TRANSACTION,- (A)CARRIED OUT ELECTRONICALLY ON SCREEN-BASED SYSTE MS THROUGH MEMBER OR AN INTERMEDIARY, REGISTERED UNDER THE BYE-LAWS, RULES AND REGULATIONS OF THE RECOGNIZED ASSOCIATION FOR TRADING IN COMMODITY DERIVATIVE IN ACCORDANCE WITH THE PROVISIONS OF THE FORWARD CONTR ACTS (REGULATION) ACT, 1952 (74 OF 1952) AND THE RULES, REGULATIONS OR BYE-LAWS MADE OR DIRECTIONS ISSUED U NDER THAT ACT ON A RECOGNIZED ASSOCIATION; AND (B) WHICH IS SUPPORTED BY A TIME STAMPED CONTRACT NOTE ISSUED BY SUCH MEMBER OR INTERMEDIARY TO VERY CLIEN T INDICATING IN THE CONTRACT NOTE, THE UNIQUE CLIENT IDENTITY NUMBER ALLOTTED UNDER THE ACT, RULES, REGULATIONS OR BYE- LAWS REFERRED TO IN SUB-CLAUSE (A), UNIQUE TRADE NU MBER AND PERMANENT ACCOUNT NUMBER ALLOTTED UNDER THIS ACT. (III) RECOGNIZED ASSOCIATION MEANS A RECOGNIZED ASSOCIATION AS REFERRED TO IN CLAUSE (J) OF SECTION 2 OF THE FORWA RD CONTRACTS (REGULATION) ACT, 1952 (74 OF 1952) AND WHICH FULFI LS SUCH CONDITIONS AS MAY BE PRESCRIBED AND IS NOTIFIED BY THE CENTRAL GOVERNMENT FOR THIS PURPOSE ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 6 PROVISO (D) EXCLUDES THE TRANSACTION FROM THE DEFIN ITION OF SPECULATIVE TRANSACTION IN RESPECT OF TRADING OF DERIVATIVES RE FERRED TO IN SECTION 2(AC) OF THE SECURITIES CONTRACT (REGULATION) ACT, 1956 C ARRIED IN RECOGNIZED STOCK EXCHANGE. SECTION 2(AC) OF THE SECURITIES CO NTRACT (REGULATION) ACT, 1956 READ AS UNDER: 2.[AC] DERIVATIVE INCLUDES (A) A SECURITY DERIVED FROM A DEBT INSTRUMENT, SHARE, L OAN, WHETHER SECURED OR UNSECURED, RISK INSTRUMENT OR CONTRACT F OR DIFFERENCES OR ANY OTHER FORM OF SECURITY; (B) A CONTRACT WHICH DERIVES ITS VALUE FROM THE PRICES, OR INDEX OF PRICES, OF UNDERLYING SECURITIES;] 7.1 THUS, IT CAN BE SEEN THAT THE DERIVATIVES ALSO INCLUDES SECURITIES. THE DEFINITION OF ELIGIBLE TRANSACTION MENTIONED HE REIN ABOVE CLEARLY SHOW THAT THE TRANSACTION MUST HAVE BEEN CARRIED OU T ELECTRONICALLY IN ACCORDANCE WITH THE PROVISIONS OF SECURITIES CONTRA CTS (REGULATION) ACT AND THE RULES AND REGULATIONS OR BYE LAWS MADE OR D IRECTIONS ISSUED UNDER THIS ACT OR BY BANKS OR MUTUAL FUNDS ON A RE COGNIZED STOCK EXCHANGE AND WHICH IS SUPPORTED BY TIME STAMPED C ONTRACT NOTE ISSUED BY SUCH STOCK BROKER OR SUB-BROKER OR INTERMEDIARY TO EVERY CLIENT INDICATING IN THE CONTRACT NOTE THE UNIQUE CLIEN T IDENTITY NUMBER AND PERMANENT ACCOUNT NUMBER. 7.2 IT WOULD BE PERTINENT TO CONSIDER THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF RAJSHREE SUGAR & CHEMICAL S LTD. VS. AXIS BANK LTD., AIR 2011 (MAD) 144, WHEREIN THE TERM DER IVATIVE HAS BEEN DEFINED TO INCLUDE FOREIGN CURRENCY AS AN UNDERLY ING SECURITY OF THE DERIVATIVE. THE RELEVANT EXTRACT OF THE CASE IS QU OTED BELOW: WHAT ARE THESE DERIVATIVES WHICH HAVE GAINED SUCH A GREAT DEAL OF NOTORIETY? IN SIMPLE TERMS, DERIVATIVES ARE FINA NCIAL INSTRUMENTS ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 7 WHOSE VALUES DEPEND ON THE VALUE OF OTHER UNDERLYIN G FINANCIAL INSTRUMENTS. THE INTERNATIONAL ACCOUNTING STANDARD (IAS) 39, DEFINES DERIVATIVES AS FOLLOWS: - A DERIVATIVE IS A FINANCIAL INSTRUMENT: (A) WHOSE VALUE CHANGES IN RESPONSE TO THE CHANGE I N A SPECIFIED INTEREST RATE, SECURITY PRICE, COMMODITY PRICE, FOR EIGN EXCHANGE RATE, INDEX OF PRICES OR RATES, A CREDIT RATING OR CREDIT INDEX, OR SIMILAR VARIABLE (SOMETIMES CALLED THE UNDERLYING ); (B) THAT REQUIRES NO INITIAL NET INVESTMENT OR LITT LE INITIAL NET INVESTMENT RELATIVE TO OTHER TYPES OF CONTRACTS THA T HAVE A SIMILAR RESPONSE TO CHANGES IN MARKET CONDITIONS; AND (C) THAT IS SETTLED AT A FUTURE DATE. ACTUALLY, DERIVATIVES ARE ASSETS, WHOSE VALUES ARE DERIVED FROM VALUES OF UNDERLYING ASSETS. THESE UNDERLYING ASSE TS CAN BE COMMODITIES, METALS, ENERGY RESOURCES, AND FINANCIA L ASSETS SUCH AS SHARES, BONDS, AND FOREIGN CURRENCIES. 7.3 FURTHER, THE SEBI WEBSITE IN ITS SECTION FRE QUENTLY ASKED QUESTIONS HAS EXPLAINED THE MEANING OF DERIVATIVE AS UNDER: Q 1. WHAT ARE DERIVATIVES? A. THE TERM DERIVATIVE INDICATES THAT IT HAS NO I NDEPENDENT VALUE, I.E. ITS VALUE IS ENTIRELY DERIVED FROM TH E VALUE OF THE UNDERLYING ASSET. THE UNDERLYING ASSET CAN BE SECURITIES, COMMODITIES, BULLION, CURRENCY, LIVE STOCK OR ANYTH ING ELSE. IN OTHER WORDS, DERIVATIVE MEANS A FORWARD, FUTURE OPTION OR ANY OTHER HYBRID CONTRACT OF PRE DETERMINED FIXED DURATION, L INKED FOR THE PURPOSE OF CONTRACT FULFILLMENT TO THE VALUE OF A S PECIFIED REAL OR FINANCIAL ASSET OR TO AN INDEX OF SECURITIES. WITH SECURITIES LAWS (SECOND AMENDMENT) ACT,1999, D ERIVATIVES HAS BEEN INCLUDED IN THE DEFINITION OF SECURITIES. THE TERM DERIVATIVE HAS BEEN DEFINED IN SECURITIES CONTRACTS (REGULATIONS) ACT , AS: A DERIVATIVE INCLUDES: - A. A SECURITY DERIVED FROM A DEBT INSTRUMENT, SHA RE, LOAN, WHETHER SECURED OR UNSECURED, RISK INSTRUMENT OR CONTRACT F OR DIFFERENCES OR ANY OTHER FORM OF SECURITY; B. A CONTRACT WHICH DERIVES ITS VALUE FROM THE PRIC ES, OR INDEX OF PRICES, OF UNDERLYING SECURITIES; ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 8 IT IS FURTHER PROVIDED BY SEBI THAT IN AUG.2008 S EBI PERMITTED EXCHANGE TRADED CURRENCY DERIVATIVE. 7.4 CONSIDERING THE RELEVANT PROVISIONS OF THE RELE VANT ACTS, DISCUSSED HEREIN ABOVE IN THE LIGHT OF HONBLE MADRAS HIGH C OURT AND THE ANSWERS GIVEN TO FREQUENTLY ASKED QUESTIONS BY THE SEBI AND THE INCORPORATION OF EXCHANGE TRADED CURRENCY DERIVATIVE FROM AUGUST, 20 08, THERE REMAIN NO IOTA OF DOUBT THAT THE TRANSACTION OF THE ASSESSEE CANNOT BE TREATED AS SPECULATIVE TRANSACTION. WE HAVE ALSO GONE THROUGH THE COPIES OF THE CONTRACT NOTES INCORPORATED IN THE PAPER BOOK FILED BEFORE US. A PERUSAL OF THE CONTRACT NOTE SHOWS THAT THE ASSESSEE HAS EI THER ENTERED INTO CALL OPTION OR PUT OPTION AND ON THE SETTLEMENT DAY THE TRANSACTION HAS BEEN SETTLED BY DELIVERY, EITHER THE ASSESSEE HAS PAID U S DOLLAR ON THE SETTLEMENT DAY OR HAS TAKEN DELIVERY OF US DOLLAR. 7.5 TO SUM UP, THE DERIVATIVES INCLUDE FOREIGN CUR RENCY AND CALL OPTION/ PUT OPTION, ARE TRANSACTIONS OF DERIVATIVE MARKETS AND CANNOT BE TERMED AS SPECULATIVE IN NATURE. CONSIDERING THE TOTALITY OF THE FACTS AND IN THE LIGHT OF THE JUDICIAL DISCUSSION HEREIN AB OVE, WE HAVE NO HESITATION IN SETTING ASIDE THE ORDER OF LD. CIT(A). APPEAL F ILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 13TH OF FEB. 2015. SD/- SD/- (AMIT SHUKLA ) (N.K. BILLAIYA) !' /JUDICIAL MEMBER !' / ACCOUNTANT MEMBER MUMBAI; 4! DATED : 02.2015 ./I .T.A. NO. 4798/MUM/2012 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 9 . . ./ VM , SR. PS !% !% !% !% 0 00 0 -$ -$ -$ -$ 5($ 5($ 5($ 5($ / COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 78 -$ , , / DR, ITAT, MUMBAI 6. 89 : / GUARD FILE. !% !% !% !% / BY ORDER, .$ -$ //TRUE COPY// ; ;; ; / < < < < * * * * (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI