SRI CITY PRIVATE LIMITED, CHENNAI V. DCIT CORPORATE CIRCLE 6 (2), CHENNAI

ITA 894/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4408 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 14-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAILENDRA MAMIDIPCIT
• Assessee Lawyers: M MURALEEDHARA REDDY
• Keywords: Business expenditure; Revenue expenditure; Capital expenditure; TDS; Rule 8D

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI , . , ! BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER , AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.894/CHNY/2018 /ASSESSMENT YEAR: 2013-14 M/S.SRI CITY PVT. LTD., NO.85, KUTCHERY ROAD, MYLAPORE, CHENNAI-600 004. VS. THE DY. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-6(2), NO.121, UTTAMAR GANDHI ROAD, CHENNAI-600 034. [PAN: AAJCS 8887 M ] ( % /APPELLANT) ( &'% /RESPONDENT) % ( / APPELLANT BY : MR.M.MURALEEDHARA REDDY, ADV. &'% ( /RESPONDENT BY : MR.SAILENDRA MAMIDI, PCIT ( /DATE OF HEARING : 20.03.2019 ( /DATE OF PRONOUNCEMENT : 20.03.2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-15, CHENNAI, I N ITA NO.107/2016- 17/CIT(A)-15 DATED 30.11.2017 FOR THE AY 2013-14. 2. MR. SAILENDRA MAMIDI, PCIT, REPRESENTED ON BEHAL F OF THE REVENUE AND MR. M.MURALEEDHARA REDDY, ADV., REPRESENTED ON BEHALF OF THE ASSESSEE. ITA NO.894/CHNY/2018 :- 2 -: 3. THE LD.AR FILED WRITTEN SUBMISSIONS AS FOLLOWS: 1. THE APPELLANT COMPANY HAS FILED ITS RETURN OF IN COME FOR THE ASSESSMENT YEAR 2013-14 ON 28TH NOVEMBER 2013 DECLARING A TOTAL LOSS OF RS. 30,82,73,823/- AND BOOKS PROFIT U/S.154JB OF RS.17,29,65,213/-. THE CASE WAS SELECTE D FOR SCRUTINY AND NOTICE U/S.143(2) OF THE INCOME-TAX ACT, 1961 DATED 04-09-2014 WAS IS SUED AND THE ASSESSING OFFICER COMPLETED ASSESSMENT ORDER U/S.143(3) BY ARRIVING AT A TAXABLE INCOME OF RS.17,68,78,192/-. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER HAS DISALLOWED PREMIUM ON REPAYMENT OF DEBENTURES OF RS.48,50,99 ,520/- CLAIMED BY THE APPELLANT AS EXPENDITURE. FURTHER, THE ASSESSING OFFICER HAS ALSO DISALLOWED RS.1,51,453/- U/S.14A READ WITH RULE 8D. AGGRIEVED, THE APPELLANT FILED APPEAL BEFORE THE COMMISSIONER (APPEALS). THE COMMISSIONER (APPEALS) WHILE DELETING THE DISALLOWAN CE RS.1,51,453/- U/S.14A READ WITH RULE 8D, CONFIRMED THE DISALLOWANCE OF PREMIUM ON REPAYMENT OF DEBENTURES OF RS.48,50,99,520/-. HENCE, THE PRESENT APPEAL. 2. THE APPELLANT HAS RAISED AN AMOUNT OF RS.49,99,9 9,900/-, BY WAY OF ISSUE OF 4,99,99,990 COMPULSORY CONVERTIBLE DEBENTURES (CC D) OF RS.10/- EACH, FROM A NON- RESIDENT INVESTOR, M/S. CAC SPARK HOLDINGS LIMITED ( CAC SPARK), IN ORDER TO FUND THE PART OF DEVELOPMENT OF ITS INTEGRATED BUSINESS PARK CONS ISTING OF SPECIAL ECONOMIC ZONE/DOMESTIC TARIFF ZONE/FREE TRADE WAREHOUSING ZONE . 3. THE DATE OF ISSUE OF THE ABOVE CCDS WAS 28TH SE PTEMBER 2007. AN OPTION WAS GIVEN FOR CONVERSION OF THESE CCDS ISSUED BY THE APPELLANT I NTO 20 LAKHS EQUITY SHARES OF RS.10/- EACH OF THE APPELLANT COMPANY AT A SPECIFIED DATE A S PER THE AGREEMENT BETWEEN THE INVESTOR AND THE COMPANY. ACCORDING TO THE TERMS OF THE AGREEMENT, CAC SPARK WAS ALSO GIVEN THE OPTION OF EXIT THROUGH A BUY BACK BUY THE APPELLANT AT 15% IRR OR BUY BACK OF THESE SECURITIES BY A THIRD PARTY IDENTIFIED BY THE APPELLANT OR ITS PROMOTER IN CASE THE APPELLANT WAS NOT IN A POSITION TO BUY BACK BY ITSE LF. 4. APPELLANT COULD NOT BUY BACK DUE TO INSUFFICIENT PROFITS AND TRIED TO IDENTIFY A THIRD PARTY TO BUY. THE TERMS THAT THE THIRD PARTY WANTED WERE DETRIMENTAL TO THE INTERESTS OF THE COMPANY. IN ORDER TO OBVIATE THIS PROBLEM, THE APPE LLANT REQUESTED ONE OF ITS INVESTORS IN THE COMPANY, M/S.I LABS HYDERABAD TECHNOLOGY CENTER (P) LTD (I LAB), TO BUY THE ABOVE MENTIONED 4,99,99,999 CCDS OF RS.10/- EACH AT SAME AGREED PRICE OF 98.50 CRORES. AS A RESULT OF THIS, THE OWNERSHIP OF 4,99,99,999 CCDS OF THE APPELLANT COMPANY GOT TRANSFERRED FROM CAC SPARK TO I LABS ON 30TH NOVEMBER 2012. LAT ER, I LABS INSISTED THE APPELLANT TO CHANGE THE CHARACTER OF THE DEBENTURES FROM COMPULS ORY CONVERTIBLE DEBENTURES TO 18% NON-CONVERTIBLE DEBENTURES RE-PAYABLE ON DEMAND AT A PREMIUM OF RS.9.70 PER DEBENTURE {IT IS TO BE NOTED THAT THIS IS EQUIVALENT TO RS.98 .5 CRORES IT HAS PAID TO CAC SPARK FOR BUYING THE 4,99,99,999 COMPULSORY CONVERTIBLE DEBEN TURES}. THE APPELLANT HAD NO OTHER CHOICE THAN ACCEPTING THEIR REQUEST AND THEREFORE C ONVERTED THE 4,99,99,999 NCDS OF RS.10/- EACH INTO 18% NON-CONVERTIBLE DEBENTURES OF RS.10/- EACH REPAYABLE WITHIN ONE YEAR WITH PUT/CALL OPTION ANY TIME WITHIN ONE YEAR A T A PREMIUM OF RS.9.70 PER DEBENTURE ON 7TH MARCH 2013. THE PREMIUM ON REPAYMENT OF 18% NON-CONVERTIBLE DEBENTURES WORKS OUT TO RS.48,50,99,520/- PAYABLE AT THE TIME OF RED EMPTION. 5. IN ITS BOOKS OF ACCOUNTS, APPELLANT HAS PASSED T HE FOLLOWING JOURNAL ENTRY ON ACCRUAL BASIS, SINCE THE LIABILITY TO PAY THE ABOVE PREMIUM WAS ALREADY ACCRUED. PREMIUM ON RE-PAYMENT OF NCD DR. RS.48,50,99,520/- TO NON-CONVERTIBLE DEBENTURES RS.48,50,99,520/- AND THE ABOVE PREMIUM WAS ADJUSTED BY THE COMPANY I N ITS BOOKS OF ACCOUNTS DURING THE FINANCIAL YEAR 2012-13 AGAINST THE EXISTING SECURIT IES PREMIUM ACCOUNT OF RS.243,35,54,936/- BY PASSING THE FOLLOWING JOURNAL ENTRY IN ITS BOOKS OF ACCOUNTS. SECURITIES PREMIUM ACCOUNT DR. RS.48,50,99,520/- TO PREMIUM ON RE-PAYMENT OF 18% NCD RS.48,50,99,52 0/- ITA NO.894/CHNY/2018 :- 3 -: BY PASSING THE ABOVE ENTRY THE COMPANY HAS ADJUSTED THE PREMIUM ON REPAYMENT OF DEBENTURES RS.48,50,99,520/- FROM THE EXISTING SECU RITIES PREMIUM AND THERE BY THE SECURITIES PREMIUM ACCOUNT GOT REDUCED TO RS.194,84 ,55,416/- DURING THE FINANCIAL YEAR 2012-13 FROM THE PREVIOUS BALANCE OF RS.243,35,54,9 36/-. THE ABOVE ENTRIES WERE AGREED BY THE STATUTORY AUDITORS OF THE COMPANY M/S.S.R. BA TLIBOL & ASSOCIATES, CHARTERED ACCOUNTS, CHENNAI AND AUDITED PROFIT AND LOSS ACCOU NTS AND BALANCE SHEET FOR THE FINANCIAL YEAR 2012-13 WAS ARRIVED ACCORDINGLY. 6. THE APPELLANT COMPANY THEREFORE CLAIMED THE ENTI RE PREMIUM ON REPAYMENT RS.48,50,99,520/- AS DEDUCTIBLE EXPENDITURE FROM TH E TAXABLE INCOME OF THE COMPANY U/S.37 OF THE INCOME TAX ACT, 1961 ON ACCRUAL BASIS, WHILE PREPARING THE COMPUTATION OF TAXABLE INCOME AND INCOME-TAX RETURN OF THE COMPANY FOR THE ASSESSMENT YEAR 2013-14. ARGUMENTS: 1. IT IS SUBMITTED THAT THE COMMISSIONER (APPEALS) W ITHOUT LOOKING INTO THE TRANSACTION HOLISTICALLY ERRED IN COMING TO THE CONCLUSION THAT IT IS INTEREST ON DEBENTURES AND NOT PREMIUM ON REPAYMENT OF THE DEBENTURES AMOUNTING TO RS.48,50,99,520/-. 2. THE COMMISSIONER (APPEALS) ERRED IN HIS FINDINGS THAT AS APPELLANT HAD NOT ACCOUNTED FOR THE INTEREST IN THE RESPECTIVE YEARS ON A PROPO RTIONATE BASIS, THE AMOUNT OF RS.48,50,99,520/- BEING INTEREST CAMOUFLAGED AS PRE MIUM AND CLAIMED IN ENTIRETY IN THE CURRENT YEAR IN THE COMPUTATION OF TOTAL INCOME. 3. IT IS PERTINENT TO NOTE THAT THE APPELLANT HAS T O GIVE DIFFERENT OPTIONS TO THE INVESTORS IN ORDER TO ATTRACT THEM TO INVEST IN THEIR COMPANY. I T IS FOR THIS REASON THAT THE APPELLANT HAS ISSUED COMPULSORY CONVERTIBLE DEBENTURES TO THE EXT ENT OF ABOUT RS.50 CRORES TO A NON- RESIDENT INVESTOR, M/S.CAC SPARK HOLDINGS LTD. (CAC SPARK). ONE OF THE OPTIONS GIVEN TO CAC SPARK, UNDER THE TERMS OF AGREEMENT, IS ITS RIG HT TO EXIT OPTION WITH IRR RATE AT 15% FROM THE DATE OF INVESTMENT TILL DATE OF EXIT. AS T HE APPELLANT WAS FINANCIALLY NOT IN A POSITION TO BUY BACK, IT IDENTIFIED ANOTHER INVESTO R, M/S.I LABS HYDERABAD TECHNOLOGY CENTER (P) LTD. (I LABS), WHICH WAS WILLING TO ACQUI RE INVESTMENT FROM SPARK APPARENTLY ON THE ASSURANCE THAT THE APPELLANT WOULD AGREE TO CON VERT THE COMPULSORY CONVERTIBLE DEBENTURE ACQUIRED BY THE (I LABS) INTO 18% NON-CONV ERTIBLE DEBENTURES AT A PREMIUM OF RS.9.70 PER DEBENTURES WITH PREMIUM BEING PAYABLE W ITHIN ONE YEAR. 4. SINCE THESE CONVERSIONS TOOK PLACE ON 7 TH MARCH, 2013, MERCANTILE SYSTEM OF ACCOUNTING REQUIRED A REVISION FOR OBLIGATION TOWARDS PREMIUM. INSTEAD OF MAKING A PROVISION IN THE P&L ACCOUNT AND THEREAFTER ADJUSTING THE SAME TO TH E PREMIUM OF REPAYMENT OF NCD ACCOUNT IN WHICH IT HAD CORRESPONDING CREDIT OF RS. 48.51 CRORES, APPELLANT DIRECTLY CHARGED THE AMOUNT TO THE EXISTING SECURITIES PREMIUM ACCOU NT BY THIS AMOUNT. THE APPELLANT HAD MADE A CLAIM OF RS.48.51 CRORES IN COMPUTATION OF T AXABLE INCOME. 5. IT IS SUBMITTED THAT IN CASE OF THE RIGHT TO DED UCTION OF THE PREMIUM AMOUNT FOR THE COMPANY, A PROVISION WOULD REQUIRE TO BE MADE UNDER MERCANTILE SYSTEM OF ACCOUNTING. DEDUCTION SHOULD BE AVAILABLE, UNLESS SUCH DEDUCTIO N IS BARRED. THOUGH CONVERSION ITSELF MAY BE ON CAPITAL ACCOUNT AS IN THE CASE OF ANY DEB ENTURE OR ANY OTHER BOND, THE OBLIGATION TO SERVICE SUCH DEBENTURES/BONDS IS ON RE VENUE ACCOUNT. THE MERE FACT THAT IT HAS NOT BEEN ROUTED THROUGH P&L ACCOUNT SHOULD MAKE NO DIFFERENCE, THROUGH SUCH ROUTING WOULD HAVE PROBABLY EXPLAINED THE MATTER MORE CLEAR LY. ALL THE SAME, IT IS ESTABLISHED LAW THAT THE ACCOUNTING THAT HAS BEEN FOLLOWED BY THE A SSESSEE IS NOT BINDING ON THE ASSESSING OFFICER. HE HAS TO DECIDE THE ISSUE ON MERITS. THE S UPREME COURT IN KEDARNATH JUTE MFG. CO. LTD., V. CIT (1971) 82 ITR 363 (SC) HAS LAID DOWN THIS LAW IN RESPECT OF A SALES TAX LIABILITY WHICH WAS NOT RECOGNIZED IN THE P&L ACCOU NT. IT WAS THIS LAW, WHICH WAS FOLLOWED SPECIFICALLY IN RESPECT OF INTEREST ON BORROWINGS F OR PURPOSES OF BUSINESS IN CIT V. U.P. ELECTRONICS CORPORATION LTD. (2006) 282 ITR 470 (ALL ) STRESSING THE FACT THAT THE DECISION HAS TO DEPEND UPON THE LAW RELATING TO DEDUCTIBILIT Y OF THE AMOUNT. 6. IT IS SUBMITTED THAT THE AMOUNT RAISED BY WAY CO MPULSORILY CONVERTIBLE DEBENTURES WAS FOR THE PURPOSE OF APPELLANTS BUSINESS OF DEVELOPM ENT OF MULTI PRODUCT OF SEZ AND DTZ NEAR TADA, CHITTOOR DISTRICT OF AP. THE EXERCISE ON INTEREST PAYABLE ON SUCH DEBENTURES WOULD BE A CHARGE ON THE P&L ACCOUNT. AS REGARDS CO NVERSION, IT IS PERTINENT TO NOTE THAT IT ITA NO.894/CHNY/2018 :- 4 -: WAS ALSO AN ARRANGEMENT BY WHICH A LARGER OUTGOING BY WAY OF IMMEDIATE PAYMENT UNDER EXIT OBLIGATION UNDERTAKEN IN AGREEMENT WITH CAC SP ARK WAS AVOIDED. IT IS AGAIN A BUSINESS DECISION. 7. IT OFTEN HAPPENS THAT THE ASSESSEE IN ITS OWN PE RCEPTION CAPITALIZES SOME PAYMENTS LIKE PREMIUM OR EVEN INTEREST. EVEN WHERE THERE IS NO DU TY TO DEDUCT TAX FROM PAYMENT OF INTEREST ON DEEP DISCOUNT BONDS, IT HAS BEEN FOUND THAT THE DIFFERENCE BETWEEN THE ISSUE PRICE AND THE AMOUNT PAYABLE ON MATURITY COULD BE T REATED AS INTEREST AND PROVISION MADE THEREAFTER WITH RIGHT TO DEDUCTION OF THE AMOUNT IN SUCH CASES, NOTWITHSTANDING THE FACT, THAT THE DIFFERENCE CANNOT STRICTLY BE CALLED INTER EST AS IT DOES NOT ACCRUE DAY TO DAY OR PERIODICALLY. BOARD CIRCULAR NO.4 DATED 16TH JULY, 2002 (2002) 256 ITR (ST) 22 RECOGNIZE SUCH LIABILITY IN THE HANDS OF THE SUBSCRIBERS OF D EEP DISCOUNT BONDS, WHILE CONCEDING THAT NO TDS WOULD BE REQUIRED. 8. THE HONBLE TRIBUNAL IN GUJARAT TOLL ROAD INVEST MENT CO. LTD. V. ASST. CIT (2010) 1 ITR (TRIB) 146 (AHMEDABAD) HAS HELD THAT IT CANNOT BE SAI D, THAT THERE IS NO LIABILITY TO PAY INTEREST WHICH HAD ACCRUED DURING THE YEAR, THOUGH IT WAS NOT PAYABLE DURING THE YEAR. THE TRIBUNAL IN THIS CASE HAS POINTED OUT THAT SECTION 43B(A) COULD HAVE NO APPLICATION AS IT IS NOT A BORROWING, SO THAT TAX DEDUCTION APPLICABLE F OR INTEREST WOULD ALSO HAVE NO APPLICATION. ALL THE SAME, IT WAS HELD THAT IT IS I NTEREST BEING THE AMOUNT NECESSARY TO SERVICE THE BONDS AND IS DEDUCTIBLE IN THE LIGHT OF THE DECISION OF THE SUPREME COURT IN MADRAS INDUSTRIAL INVESTMENT CORPN. LTD. V. CIT (19 97) 225 ITR 802 (SC). SCHEDULE VI OF THE COMPANIES ACT SPECIFICALLY PROVIDES FOR SUCH PA YMENTS BY REQUIRING THEM TO BE REPORTED AS ACCRUED BUT NOT DUE. WHERE IT WAS FOUND TO BE ALLOWABLE, WHERE IT IS DES CRIBED AS DISCOUNT ON ISSUE BUT TO BE SPREAD OVER THE PERIOD OF LOAN. EVEN THE PREMIUM PA YABLE ON MATURITY WAS SIMILARLY REQUIRED TO BE PROVIDED FOR EVEN AS DECIDED IN OTHE R CASES. 9. IT IS SUBMITTED THAT THE HONBLE SUPREME COURT I N MADRAS INDUSTRIAL INVESTMENT CORPORATION LTD., V. CIT [1997] 225 ITR 802 HAD OCCA SION TO DEAL WITH THE ISSUE OF DEDUCTION OF DISCOUNT ON DEBENTURES ISSUED BY THE C OMPANY. FOR ACCOUNTING PURPOSES, THE DISCOUNT WAS SPREAD OVER THE PERIOD OF THE DEBENTUR ES WITH THE RESULT THAT ONLY A PROPORTIONATE PART WAS CHARGED TO THE ACCOUNTS OF T HE YEAR. WHAT WAS CHARGED TO ACCOUNTS WAS ALONE CLAIMED IN THE ASSESSMENT AS WELL. THE AS SESSING OFFICER DISALLOWED THE SAME AS CAPITAL EXPENDITURE BUT THE FIRST APPELLATE AUTHORI TY ALLOWED IT. THE TRIBUNAL ALLOWED THE DISCOUNT FOR THE ISSUE DURING THE YEAR. ON A REFEREN CE, THE HIGH COURT FOUND THAT NO PART OF THE AMOUNT COULD BE ALLOWED AS A DEDUCTION ON PRINC IPLE BEING CAPITAL EXPENDITURE. AFTER REVIEW OF DECISIONS, THE SUPREME COURT DECIDE D THAT EXPENDITURE IS NOT ONE WHICH HAS NECESSARILY TO BE PAYABLE IN THE SAME YEAR TO BE AL LOWABLE FOLLOWING THE DECISION IN CALCUTTA CO. LTD. V. CIT [1959] 37 ITR 1 (SC) IN FOLLOWING WO RDS: THEREFORE, ALTHOUGH EXPENDITURE PRIMARILY DENOTES THE IDEA OF SPENDING OR PAYING OUT, IT MAY, IN GIVEN CIRCUMSTANCES, ALSO COVER AN AMOUNT O R LOSS WHICH HAS NOT GONE OUT OF THE ASSESSEES POCKET BUT WHICH IS ALL THE SAME, AN AMO UNT WHICH THE ASSESSEE HAS HAD TO GIVE UP. IT ALSO COVERS A LIABILITY WHICH THE ASSESSEE H AS INCURRED IN PRAESENTI (PRESENCE) ALTHOUGH IT IS PAYABLE IN FUTURE. A CONTINGENT LIAB ILITY THAT MAY ARISE IN FUTURE IS, HOWEVER, NOT EXPENDITURE. IT WOULD ALSO COVER NOT JUST A ONE -TIME PAYMENT BUT A LIABILITY SPREAD OUT OVER A NUMBER OF YEARS. AFTER QUOTING SPICER AND PEGLERS BOOK-KEEPING AND ACCOUNTS AND BATLIBOIS PRINCIPLES AND PRACTICE OF AUDITING, THE SUPREME COURT FOUND IN TH E FORMER WORK THE PRINCIPLE THAT DISCOUNT ON DEBENTURES IS TO BE TREATED AS INTEREST AND IN THE LATTER, AN OBSERVATION THAT IS CAN BE CHARGED ON A PROPORTIONATE BASIS DURING THE PERIOD OF ITS LIFE. IT ALSO REFERRED TO ITS OWN DECISION IN INDIA CEMENTS LTD. V. CIT [1996] 60 ITR 52 (SC), WHERE THE COST OF RAISING DEBENTURES BEING STAMP DUTY, REGISTRATION FEES, LAW YERS FEES, ETC., WAS TREATED AS REVENUE NATURE. ITA NO.894/CHNY/2018 :- 5 -: 10.THE HONBLE SUPREME COURT HAVING FOUND THAT IT W AS REVENUE EXPENDITURE, CONSIDERED THE FURTHER CLAIM FOR ALLOWANCE IN THE YEAR IN WHIC H IT WAS INCURRED. IT NOTICED THAT IN THE DECISION OF THE CALCUTTA HIGH COURT IN HINDUSTAN AL UMINUM CORPORATION LTD. V. CIT [1983] 144 ITR 474, A LUMP SUM PAYMENT TO SECURE TECHNICAL ASSISTANCE IN TRAINING OVER A NUMBER OF YEARS WAS HELD RIGHTLY DEDUCTIBLE ON A PROPORTIO NATE BASIS. IN FACT, AFTER A REVIEW OF A NUMBER OF CASES, IT FELT THAT, WHILE DISCOUNT ON DE BENTURES IS A CONTINUING BENEFIT, IT COULD BE ALLOWED ONLY ON A PROPORTIONATE BASIS AS THERE I S A CONTINUING BENEFIT. THE ASSESSEES ACCOUNTING TREATMENT, IT WAS HELD, WAS CORRECT AND THE DECISION THAT IT SHOULD BE SPREAD OVER THE PERIOD OF DEBENTURE AS HELD BY THE MADHYA PRADESH HIGH COURT IN M.P. FINANCIAL CORPORATION V. CIT [1987] 165 ITR 765 HAD TO BE ACCE PTED. 11. EXPENSES RELATING TO DISCOUNTED ISSUE OF COMMER CIAL PAPERS WOULD HAVE THE SAME CHARACTER AS DISCOUNT ITSELF AND WOULD BE ADMISSIBL E BUSINESS EXPENDITURE AS HELD IN JT. CIT V. MUKUND LTD. [2007] 291 ITR (AT) 249 (MUM) [SB]. 12.WHERE A COMPANY INSTEAD OF DISCOUNTING AT THE TI ME OF ISSUE OFFERED PREMIUM AT THE END OF THE PERIOD OF DEBENTURE, BUT PROVIDED FOR TH E SAME ON A PRO RATA BASIS BY SPREADING IT OVER DURING THE LIFE OF THE DEBENTURE, SO THAT P ART OF THE PREMIUM PAYABLE IN FUTURE ON THE DATE OF REDEMPTION WAS TREATED AS A CHARGE ON T HE PROFITS OF THE YEAR - NATIONAL ENGINEERING INDUSTRIES LTD. V. CIT [1999] 236 ITR 57 7 (CAL). 13.IT IS ON THIS PRINCIPLE EVEN POTENTIAL LIABILITY , WHICH IS CERTAIN, HAD BEEN CONSIDERED ALLOWABLE IN THE FOLLOWING CASES: A) UDAIPUR MINERAL DEVELOPMENT SYNDICATE PVT. LTD. V . DY. CIT (ASSESSMENT) [2003] 261 ITR 706 (RAJ), B) TUTICORIN SPINNING MILLS LTD. V. CIT [2003] 261 IT R 291 (MAD) C) HINDUSTAN ALUMINUM CORPORATION LTD. V. CIT [1983] 144 ITR 474 (CAL), D) CIT V. S.M. HOLDING AND FINANCE P. LTD., [2003] 26 4 ITR 370 (BOM), E) TAPARIA TOOLS LTD. V. JT. CIT [2003] 260 ITR 102(B OM), F) CIT V. SHREE RAJASTHAN SYNTEX LTD. [2004] 269 ITR 461 (RAJ) AND G) MADHYA PRADESH FINANCIAL CORPORATION V. CIT [1987 ] 165 ITR 765 (MP). 14.IT IS PERTINENT TO NOTE THAT THE HONBLE HIGH CO URT OF CALCUTTA IN THE CASE OF CIT VS. TUNGABHADRA INDUSTRIES LTD. {204 ITR 553}, HAS HELD THAT THE ENTIRE PREMIUM ON 7 YEARS DEBENTURES SHOULD BE ALLOWED AS A DEDUCTION IN ITS ENTIRETY IN ONE YEAR I.E. IN THE YEAR IN WHICH SUCH LIABILITY IS INCURRED. 15. IN THE PRESENT CASE, THE CONVERSION TERMS HAD B EEN ACCEPTED ON 7 TH MARCH, 2013 WITH PREMIUM PAYABLE AT RS.9.70 PER DEBENTURE WITHIN A Y EAR. THERE IS NO BASIS FOR EVEN SPREADING IT OVER, SINCE THIS PART OF THE OBLIGATIO N ARISES IMMEDIATELY. IT MAY ALSO BE NOTED THAT THE DEBENTURES ARE REPAYABLE ON DEMAND, SO THE RE IS NO CASE EVEN OTHERWISE FOR SPREAD OVER. IT IS SEEN, THAT THE RESERVE AND SURPLUS IN THE BAL ANCE SHEET SHOWS A DIFFERENCE FROM THE OPENING BALANCE EXPLAINED BY ITEM NO.4 READ WITH IT EM NO.8(A) OF NOTES ON ACCOUNTS. THIS WILL SATISFY THE DISCLOSURE REQUIREMENTS. THE DEDUC TION IS, THEREFORE, AVAILABLE IN THE FACE OF ACCOUNTS FURNISHED, NOTWITHSTANDING THE OMISSION TO ROUTE THE TRANSACTION THROUGH P&L ACCOUNT. IN LIGHT OF THE ABOVE ARGUMENTS, IT IS RESPECTFULLY PRAYED THAT THE HONBLE TRIBUNAL MAY BE PLEASED TO ALLOW THE APPEAL AND DELETE THE DISALLOW ANCE OF RS.48,50,99,520/- AND RENDER JUSTICE. ITA NO.894/CHNY/2018 :- 6 -: 4. IT WAS SUBMITTED BY THE LD.AR THAT THE PREMIUM O N THE DEBENTURES TO THE EXTENT OF RS.48,50,99,520/- WAS DISALLOWED B Y THE AO BY HOLDING THAT THE DEBENTURES ARE THE MOST COMMON FORM OF LON G TERM LOANS THAT CAN BE TAKEN BY THE COMPANY AND THE SAID DEBENTURES RECEIVED A FIXED RATE OF INTEREST. THE AO FURTHER PROCEEDED TO HOLD THAT THE INTEREST ACCRUES FOR THE DEBENTURES FROM THE DATE ON WHICH I T IS ISSUED AND CONSEQUENTLY, HELD THAT THE INTEREST WAS LIABLE TO BE CLAIMED DURING THE RELEVANT AY AS THE ASSESSEE WAS FOLLOWING MERCANTIL E SYSTEM OF ACCOUNTING AND FOR THE RELEVANT AY, THE AO DISALLOWED THE INTE REST HOLDING THAT THE TDS HAD NOT DEDUCTED. IT WAS A SUBMISSION THAT THE LD.CIT(A) ALSO UPHELD THE ORDER OF THE AO IN PARA NOS.4.3.5 & 4.3. 6 OF THE LD.CIT(A). IT WAS A SUBMISSION THAT THE AO AND THE LD.CIT(A) TOOK THE VIEW THAT THE INTEREST WAS CAMOUFLAGED BY THE ASSESSEE AS PREMIUM AND THE SAME WAS NOT LIABLE TO BE ALLOWED. IT WAS A SUBMISSION THAT THE ISSUANCE OF THE DEBENTURES HAD BEEN APPROVED BY THE RBI AS ALSO THE COMPANY LAW BOARD, BEFORE WHOM, THE NECESSARY APPLICATIONS HAD BEEN MADE. IT WAS A SUBMISSION THAT THE ASSESSEE IS NOT A NON-BANKING F INANCIAL COMPANY (NBFC). IT WAS A FURTHER SUBMISSION THAT THE ASSES SEE HAD ENTERED INTO AN AGREEMENT WITH THE NON-RESIDENT INVESTOR, M/S.CA C SPARK HOLDINGS LTD., (IN SHORT M/S.CAC SPARK) AND BOARD RESOLUTI ONS HAD ALSO BEEN PASSED BY THE ASSESSEE AS ALSO BY THE NON-RESIDENT INVESTOR AND THE SAME HAD ALSO BEEN APPROVED BY THE RBI FOR ISSUANCE OF T HE DEBENTURES. IT WAS A SUBMISSION THAT THE PREMIUM ON THE DEBENTURES WAS NOT LIABLE TO BE TREATED AS INTEREST AND THE ASSESSEES CLAIM OF THE EXPENDITURE OF THE ITA NO.894/CHNY/2018 :- 7 -: PREMIUM WAS LIABLE TO BE ALLOWED. IT WAS A SUBMISS ION THAT THE SAID DEBENTURES HAD BEEN CONVERTED INTO NON-CONVERTIBLE DEBENTURES (IN SHORT NCDS) ON 07.03.2013 AND THE CLAIM OF THE PREMIUM REPRESENTING RS.48.51 CRS. WERE MADE IN THE COMPUTATION OF THE T OTAL INCOME OF THE ASSESSEE. IT WAS A SUBMISSION THAT THE ISSUES WERE SQUARELY COVERED BY THE DECISION OF THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF M/S.TUNGABHADRA INDUSTRIES LTD., REPORTED IN 204 IT R 553. IT WAS A FURTHER SUBMISSION THAT THE PREMIUM WAS IN NO WAY L IABLE TO BE TREATED AS INTEREST. 5. IN REPLY, THE LD.DR VEHEMENTLY SUPPORTED THE ORD ER OF THE AO AND THE LD.CIT(A). 6. IT WAS A SUBMISSION THAT THE ISSUANCE OF DEBENTU RES WERE CLEARLY FOR THE PURPOSE OF TAKING A LOAN AND THE PREMIUM WAS NO THING BUT CAMOUFLAGED INTEREST PAYMENT AS HAS BEEN RIGHTLY PO INTED OUT BY THE LD.CIT(A) IN PARA NOS.4.3.5 & 4.3.6 OF THE ORDER OF THE LD.CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. 8. A PERUSAL OF THE FACTS IN THE PRESENT CASE CLEAR LY SHOWS THAT INITIALLY THE ASSESSEE HAD RAISED NEARLY RS.50 CRS. BY WAY OF ISSUANCE OF 4.90 CRS. OF COMPULSORY CONVERTIBLE DEBENTURES (IN SHORT CCD S) HAVING A VALUE OF RS.10/- EACH. THESE CCDS WERE ISSUED TO NON-RESIDE NT INVESTOR, M/S.CAC ITA NO.894/CHNY/2018 :- 8 -: SPARK, MAURITIUS ON 28.09.2007. THESE CCDS WERE TO BE CONVERTED INTO 20 LAKHS EQUITY SHARES OF RS.10/- EACH AT A LATER S PECIFIED DATE AT PREMIUM WITH AN INTERNAL RATE OF RETURN (IN SHORT IRR) OF 15% MINIMUM UP TO THE EXPIRY OF 42 MONTHS AND THEREAFTER 25% IR R. THERE WAS PUT/CALL OPTION AVAILABLE IN THE AGREEMENT. AS PER THE TERMS OF THE AGREEMENT, MAURITIUS BASED COMPANY HAVE TO BE GIVEN AN EXIT THROUGH A BUY BACK OR BY THE ASSESSEE COMPANY OR THE PROMOTER S TO THE ASSESSEE COMPANY IDENTIFYING A THIRD PARTY TO BUY THE CCDS. THE ASSESSEE COMPANY HAD REQUESTED ONE OF THE INVESTORS IN THE A SSESSEE COMPANY NAMELY M/S.I LABS HYDERABAD TECHNOLOGY CENTER (P) L TD., (IN SHORT M/S.I LABS) TO BUY THE ABOVE MENTIONED CCDS AT AN AGREED PRICE OF NET FIGURE OF RS.98.51 CRS. AS M/S.CAC SPARK WANTED TO EXIT TH E CCDS. THERE WAS A PURCHASE AGREEMENT BETWEEN THE MAURITIUS BASED COMP ANY AND M/S.I LABS DATED 23.07.2012 FOR THE PURCHASE OF THE EQUIT Y SHARES. THUS, IT WAS A SUBMISSION THAT AS PER THE BASIC IRR AT 15%, THE INVESTMENT OF RS.50 CRS. MATURED ON 31.12.12 AT RS.104.30 CRS. AS AGA INST THIS, THE ASSESSEE COMPANY WAS ABLE TO GET THE FIGURE NEGOTIA TED BETWEEN THE MAURITIUS BASED COMPANY AND THE TOTAL REPAYMENT WAS DETERMINED AT RS.98.51 CRS. SUBSEQUENT TO THE TRANSFER OF THE CC DS FROM M/S.CAC SPARK TO M/S.I LABS, THE NEW OWNER OF THE CCDS INSI STED ON CONVERSION OF THE SAID CCDS INTO 18% NCDS (NON CONVERTIBLE DEBENT URES) REPAYABLE ON DEMAND AT PREMIUM OF RS.9.70 PER DEBENTURE EQUIVALE NT TO RS.98.50 CRS. PAID TO M/S.CAC SPARK BY M/S.I LABS. SUBSEQUENTLY, THE ASSESSEE COMPANY AND M/S.I LABS MADE THE ARRANGEMENT ON 07.0 3.2013 FOR ITA NO.894/CHNY/2018 :- 9 -: CONVERSION OF THE CCDS INTO NCDS. THUS, CLEARLY, T HE NATURE OF THE TRANSACTION IS TO BE SEEN AS A WHOLE. THE HONBLE SUPREME COURT IN THE CASE OF VODAFONE INTERNATIONAL HOLDINGS B.V. REPORT ED IN 329 ITR 126 HAS HELD THAT THE COURT MUST LOOK AT THE ENTIRE TRANSAC TION AS A WHOLE AND NOT ADOPT DISSECTING APPROACH. THE SUPREME COURT FURTHE R HELD THAT THE COURT CANNOT START WITH THE QUESTION OF WHETHER THE TRANS ACTION IS A TAX SAVING DEVICE, BUT SHOULD INSTEAD APPLY THE LOOK AT TEST TO ASCERTAIN ITS TRUE LEGAL NATURE. THE RELEVANT EXTRACT FROM THE SAID JU DGMENT OF THE SUPREME COURT IS QUOTED BELOW: 79. WHEN IT COMES TO TAXATION OF A HOLDING STRUCTU RE, AT THE THRESHOLD, THE BURDEN IS ON THE REVENUE TO ALLEGE AND ESTABLISH AB USE, IN THE SENSE OF TAX AVOIDANCE IN THE CREATION AND/OR USE OF SUCH STRUCT URE(S). IN THE APPLICATION OF A JUDICIAL ANTI-AVOIDANCE RULE, THE REVENUE MAY INVOK E THE SUBSTANCE OVER FORM PRINCIPLE OR PIERCING THE CORPORATE VEIL TEST ONL Y AFTER IT IS ABLE TO ESTABLISH ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SURROUNDIN G THE TRANSACTION THAT THE IMPUGNED TRANSACTION IS A SHAM OR TAX AVOIDANT. TO GIVE AN EXAMPLE, IF A STRUCTURE IS USED FOR CIRCULAR TRADING OR ROUND TRI PPING OR TO PAY BRIBES THEN SUCH TRANSACTIONS, THOUGH HAVING A LEGAL FORM, SHOULD BE DISCARDED BY APPLYING THE TEST OF FISCAL NULLITY. SIMILARLY, IN A CASE WHERE THE R EVENUE FINDS THAT IN A HOLDING STRUCTURE AN ENTITY WHICH HAS NO COMMERCIAL/BUSINES S SUBSTANCE HAS BEEN INTERPOSED ONLY TO AVOID TAX THEN IN SUCH CASES APP LYING THE TEST OF FISCAL NULLITY IT WOULD BE OPEN TO THE REVENUE TO DISCARD SUCH INTERP OSITIONING OF THAT ENTITY. HOWEVER, THIS HAS TO BE DONE AT THE THRESHOLD. 80. IN THIS CONNECTION, WE MAY REITERATE THE LOOK AT PRINCIPLE ENUNCIATED IN RAMSAY [1982 AC 300: (1981) 2 WLR 449 : (1981) 1 AL L ER 865 (HL)] IN WHICH IT WAS HELD THAT THE REVENUE OR THE COURT MUST LOOK AT A DOCUMENT OR A TRANSACTION IN A CONTEXT TO WHICH IT PROPERLY BELONGS TO. IT IS THE TASK OF THE REVENUE/COURT TO ASCERTAIN THE LEGAL NATURE OF THE TRANSACTION AND W HILE DOING SO IT HAS TO LOOK AT THE ENTIRE TRANSACTION AS A WHOLE AND NOT TO ADOPT A DISSECTING APPROACH. THE REVENUE CANNOT START WITH THE QUESTION AS TO WHETHE R THE IMPUGNED TRANSACTION IS A TAX DEFERMENT/SAVING DEVICE BUT THAT IT SHOULD AP PLY THE LOOK AT TEST TO ASCERTAIN ITS TRUE LEGAL NATURE [SEE CRAVEN V. WHIT E (STEPHEN) [1989 AC 398: (1988) 3 WLR 423: (1988) 3 ALL ER 495 (HL)] WHICH F URTHER OBSERVED THAT GENUINE STRATEGIC TAX PLANNING HAS NOT BEEN ABANDONED BY AN Y DECISION OF THE ENGLISH COURTS TILL DATE]. 81. APPLYING THE ABOVE TESTS, WE ARE OF THE VIEW TH AT EVERY STRATEGIC FOREIGN DIRECT INVESTMENT COMING TO INDIA, AS AN INVESTMENT DESTIN ATION, SHOULD BE SEEN IN A HOLISTIC MANNER. WHILE DOING SO, THE REVENUE/COURTS SHOULD KEEP IN MIND THE FOLLOWING FACTORS: THE CONCEPT OF PARTICIPATION IN INVESTMENT, THE DURATION OF TIME DURING WHICH THE HOLDING STRUCTURE EXISTS; THE PERI OD OF BUSINESS OPERATIONS IN INDIA; THE GENERATION OF TAXABLE REVENUES IN INDIA; THE TIMING OF THE EXIT; THE CONTINUITY OF BUSINESS ON SUCH EXIT. ITA NO.894/CHNY/2018 :- 10 -: 82. IN SHORT, THE ONUS WILL BE ON THE REVENUE TO ID ENTIFY THE SCHEME AND ITS DOMINANT PURPOSE. THE CORPORATE BUSINESS PURPOSE OF A TRANSACTION IS EVIDENCE OF THE FACT THAT THE IMPUGNED TRANSACTION IS NOT UNDER TAKEN AS A COLOURABLE OR ARTIFICIAL DEVICE. THE STRONGER THE EVIDENCE OF A D EVICE, THE STRONGER THE CORPORATE BUSINESS PURPOSE MUST EXIST TO OVERCOME THE EVIDENC E OF A DEVICE. 9. IN THE PRESENT CASE, CLEARLY THE ISSUANCE OF THE DEBENTURES HAVE BEEN PRIMARILY TO A NON-RESIDENT INVESTOR WHICH IS IN EFFECT AN FDI AND WHICH HAS ALSO BEEN APPROVED BY THE RBI AND THE COM PANY LAW BOARD. THE NATURE OF THE TRANSACTION BEING ISSUANCE OF DEB ENTURES AND THE PAYMENT OF THE PREMIUM THEREON CANNOT BE IGNORED AN D THE LEGAL NATURE OF THE INSTRUMENT OF THE CCDS CAN NO WAY BE IGNORED , TO DRAW AN ASSUMPTION THAT THE PREMIUM PAID IS IN EFFECT INTER EST ON ANY LOAN TAKEN. THIS VIEW OF OURS ALSO FIND SUPPORT FROM THE DECISI ON OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ZAHEER MAURITIUS IN WP (C ) NO.1648/2013 DATED 30.07.2014, WHEREIN, IT HAS BEEN HELD THAT THE CCDS COULD NOT BE READ TO BE A FIXED RETURN INSTRUMENT SINCE THE PETITIONER T HEREIN HAD ALSO OPTION TO CONTINUE AS AN EQUITY SHAREHOLDER OF THE JOINT VENT URE . IN THE PRESENT CASE ALSO, THE TERMS OF THE CCDS CLEARLY SHOWS THAT M/S.CAC SPARK HAD THE OPTION TO CONVERT THE SAID CCDS INTO SHARES OF THE ASSESSEE COMPANY. IT WAS ONLY TO AVOID LOSS OF CONTROL OF THE ASSESSE E COMPANY BY ISSUANCE OF SHARES/LAND OF THE ASSESSEE COMPANY TO M/S.CAC S PARK, THE ASSESSEE BROUGHT IN M/S.I LABS TO TAKE OVER THE CCDS HELD B Y M/S.CAC SPARK AT A NEGOTIATED PRICE. THUS, CLEARLY THE CONCEPT OF INT EREST WAS LOST WHEN THE TRANSFER TOOK PLACE AT A NEGOTIATED RATE BETWEEN M/ S.CAC SPARK AND M/S.I LABS. CONSEQUENTLY, WE ARE OF THE VIEW THAT THE PR EMIUM ON THE SAID ITA NO.894/CHNY/2018 :- 11 -: DEBENTURES TO THE EXTENT OF RS.48,50,99,520/- IS NO T IN THE NATURE OF INTEREST BUT IS AN EXPENDITURE IN THE NATURE OF PRE MIUM ITSELF, WHICH IS LIABLE TO BE ALLOWED IN THE YEAR OF INCURRENCE OF T HE LIABILITY BEING THE IMPUGNED AY UNDER APPEAL. THIS VIEW OF OURS FIND S UPPORT FROM THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S. TUNGABHADRA INDUSTRIES LTD., REFERRED TO SUPRA. IN THESE CIRCUMSTANCES, THE AO IS DIRECTED TO GRANT THE ASSESSEE THE BENEFI T OF THE EXPENDITURE IN RESPECT OF THE PREMIUM ON THE CCDS AS CLAIMED BY TH E ASSESSEE IN ITS COMPUTATION OF TOTAL INCOME. 10. NO OTHER ISSUES WERE RAISED OR ARGUED IN THE C OURSE OF HEARING. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 20 TH DAY OF MARCH, 2019 IN CHENNAI. SD/- SD/- ( . ) ( A. MOHAN ALANKAMONY ) /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) /JUDICIAL MEMBER /CHENNAI, 0 /DATED: 20 TH MARCH, 2019. TLN ( &12 32 /COPY TO: 1. % /APPELLANT 4. 4 /CIT 2. &'% /RESPONDENT 5. 2 & /DR 3. 4 ( ) /CIT(A) 6. /GF