Commissioner Of Income Tax vs Cargill Global Trading Pvt. Ltd.
2011 Latest Caselaw 928 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              ITA No.331 of 2011
                                    with
                             ITA No.204 of 2011

%                      DECISION DELIVERED ON: FEBRUARY 17, 2011

    1) ITA No.331 of 2011

       COMMISSIONER OF INCOME TAX                      . . . APPELLANT

                             through :      Ms. Prem Lata Bansal, Sr.
                                            Advocate with Mr. Deepak
                                            Anand, Advocate.


                                   VERSUS

       CARGILL GLOBAL TRADING PVT. LTD.               . . .RESPONDENT

                             through:       Mr. Salil Kapoor, Advocate.

    2) ITA No.204 of 2011

       COMMISSIONER OF INCOME TAX                      . . . APPELLANT

                             through :      Ms. Prem Lata Bansal, Sr.
                                            Advocate with Mr. Deepak
                                            Anand, Advocate.


                                   VERSUS

       CARGILL GLOBAL TRADING PVT. LTD.               . . .RESPONDENT

                             through:       Mr. Salil Kapoor, Advocate.


CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE M.L. MEHTA

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?


ITA Nos.331/2011 & 204 of 2011                                  Page 1 of 9
        3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (ORAL)

1. In these two appeals filed by the Revenue against the same

assessee, the issue is identical and pertains to two assessment

years, i.e., Assessment Years 2004-05 and 2005-06. The

Income Tax Appellate Tribunal (hereinafter referred to as „the

Tribunal‟) vide orders dated 09.10.2009 had decided the issue

in favour of the assessee and order passed in that case has

been followed in the subsequent assessment year. In these

circumstances, while dealing with the issues, we may take note

of the facts appearing in ITA No.331 of 2001, which pertains to

the Assessment Year 2004-05.

2. In this Assessment Year, the respondent assessee filed the

income tax return declaring the income at 1.14 Crore. During

the assessment proceedings, the Assessing Officer (AO)

noticed that the assessee had paid a sum of `3.97 Crores to its

associate concern, M/s Kargil Financial Services Asia Pvt.

Limited (CFSA) Singapore on account of discounted charges for

getting the export sale bills discounted. The AO was of the

view that the discounting charges were nothing but the interest

within the ambit of Section 2(28A) of the Income Tax Act (for

brevity „the Act‟). Since the assessee had not deducted tax at

source under Section 195 of the Act, he invoked the provisions

of Section 40(a)(i) of the Act and disallowed the sum of `3.97

Crores claimed by the assessee under Section 37(1) of the Act.

3. CIT (A) deleted the addition holding that the discount paid by

the assessee to CFSA cannot be held to be interest and

therefore, provisions of Section 40(a)(i) of the Act would not

apply. Accordingly, he allowed the expenditure of `3.97 Crores

as claimed by the assessee.

4. The Revenue did not accept the aforesaid decision of the CIT

(A) and therefore, challenged the same by filing the appeal

before the Tribunal, though unsuccessful as the Tribunal has

affirmed the order of the CIT (A). The Tribunal observed that

discounting charges were not in the nature of interest paid by

the assessee, rather assessee had received net amount of bill

of exchange accepted by the purchaser after deducting amount

of discount. Since CFSA was having no permanent

establishment in India, it was not liable to tax in respect of

such account earned by it and therefore, the assessee was not

under an obligation to deduct tax at source under Section 195

of the Act. Accordingly, the Tribunal held that the said

discounting charges could not be disallowed by the AO by

invoking Section 40(a)(i) of the Act.

5. We may notice at this stage that the respondent assessee is in

the export business. On the exports made by the assessee to

its best buyers outside India, the assessee draws bills of

exchange on those buyers located outside India. These bills of

exchange are discounted by the assessee from CFSA who on

discounting the bills immediately remits the discounted amount

to the assessee. Thereafter, it is the obligations/headaches of

CFSA to release the amounts of those buyers to whom the

goods are exported and bills are drawn by the assessee. It is

the said discounted charges which were claimed by the

assessee as expenses under Section 37(1) of the Act. The

discounting facilities offered by the CFSA to the assessee after

charging its aforesaid discounted commission are not

questioned by the Revenue. Only objection was that on this

amount remitted by the assessee to the CFSA, the assessee

was to deduct tax at source (TDS) under Section 195 of the Act

and since it was not done, invoking the provisions of Section

40(a)(i) of the Act, the expenditure was disallowed.

6. As pointed out above, according to the AO, the aforesaid

discounted charges by the assessee to CFSA were treated as

„interest‟ within the meaning of Section 2 (28A) of the Act.

7. We may also point out at this stage that CFSA is a company

incorporated in Singapore and a tax resident of Singapore.

CFSA, inter alia, underwrite or otherwise acquire, own, hold,

sell or exchange securities or investments of any kind including

negotiable instruments, commercial paper etc. Accordingly, as

a part of its aforesaid business, it draws, makes, accepts,

endorses, discounts, executes and issues promissory notes, BE

etc. Further CFSA does not have a permanent establishment

(PE) in terms of Articles 5 of the India Singapore Treaty („the

Treaty‟ or the „DTAA‟).

8. We may also record the following nature of the transaction

undertaken between the assessee and CFSA, as found by the

Tribunal in the following terms:

"The purchase of BE‟s on a „without recourse‟ basis implies that:

The appellant sells the BE‟s to CFSA, typically, on „without recourse‟ basis i.e. CFSA purchases the Bes on its own behalf.

CFSA collects the payment from the sale/settlement f the BE on its own behalf, and not on behalf of the Indian Companies.

CFSA has no right to proceed against the appellant in case of a default by the foreign buyer.

Essential activities involved in the aforesaid bills discounting may also be summarized as under:

A contract is entered into between the appellant (seller) and buyer (a non-resident) for export of goods, and invoiced accordingly;

The appellant drawn BE on the non-resident, buyer which usually has a maturity period of 6 months;

Above BE is then sold by the appellant to CFSA at a discount, who immediately thereafter, remit the discounted value of the BE (i.e. maturity value les discount) to the appellant.

In fact, this is not a case where payment is made by the resident (i.e. the appellant) to a non-resident (i.e. CFSA).

The non-resident buyer would make the payment towards the settlement of the bills to CFSA outside India. In the alternative, CFSA may further sell the BE to another party (the "New owner") at the prevailing market price; in such a case payment would be made by the non-resident buyer of the new owner of the BE."

9. On the aforesaid facts, it was concluded by the CIT (A) as well

as the Tribunal that the discounting charges paid by the

assessee is not an interest as neither any money is borrowed

nor any debt is incurred. The expression „interest‟ is defined

under Section 2(28A) of the Act, which reads as under:

"Interest" means interest payable in any manner in respect of any moneys borrowed or debt incurred (including a deposit, claim or other similar right or obligation) and includes any service fee or other charge in respect of the moneys borrowed or debit incurred or in respect of any credit facility which has not been utilised."

10. It is clear from the above that before any amount paid is

construed as interest, it has to be established that the same is

payable in respect of any money borrowed or debt incurred. In

the present case, on the aforesaid facts appearing on record, in

our opinion, the Tribunal rightly held that the discount charges

paid were not in respect of any debt incurred or money

borrowed. Instead, the assessee had merely discounted the

sale consideration respectively on sale of goods. The following

discussion of the Tribunal in this behalf is relevant:

"9. The word "interest" is differently defined under Interest-tax Act. As per Section 2(7) of Interest-tax Act, "interest" means interest on loans and advances made in India and includes-(a) commitment charges on unutilized portion of any credit sanctioned for being availed of in India and (b) discount on promissory notes and bill of exchange drawn or made in India. Thus where the legislature was conscious of the fact that even the discount of bill of exchange is to be included within the definition of interest, the same was basically so provided for. However, under the scheme of IT Act, the word "interest" defined under Section 2(28A) does not include the discounting charges on discounting of bill of exchange. Though the Circular No. 65 was rendered in relation to deduction of tax under Section 194A, in respect of payment to a resident, the same will be relevant even for the purpose of considering whether the discount should be treated as interest or not. The CBDT has opined that where the supplier of goods makes over the usance bill/hundi to his bank which discounts the same and credits the net amount to the supplier's account straightaway without waiting for realization of the bill on due date, the property in the usance bill/hundi passes on to the bank and the eventual collection on due date is a receipt by the bank on its own behalf and not on behalf of the supplier. For such cases of immediate discounting the net payment made by the bank to the supplier is in the nature of a price paid for the bill. Such payment cannot technically be held as including any interest and therefore, no tax need be deducted at source from such payment by the bank. The decision relied by the AO in the case of Vijay Ship Breaking Corpn. (supra) has been reversed by the Hon'ble Supreme Court as reported in the case of Vijay Ship Breaking Corpn. v. CIT (2008) 219 CTR 639 (SC): (2008) 14 DTR (SC) 74. The Hon'ble Supreme Court held that usance interest payable outside India by an undertaking engaged in the business of ship breaking is exempt from payment of income-tax by virtue of Expln. 2 added to Section 10(15)(iv)(c) with retrospective effect from 1st April, 1962 and hence the assessee was not liable to deduct tax at source under Section 195 of the Act, The discounting charges are not in the nature of interest paid by the assessee. Rather after deducting discount the assessee received net amount of the bill of exchange

accepted by the purchaser. CFSA, not having any PE in India, is not liable to tax in respect of such discount earned by it and hence the assessee is not under obligation to deduct tax at source under Section 195 of the Act. Accordingly, the same amount cannot be disallowed by invoking Section 40(a)(i) of the Act."

11. We are in agreement with the aforesaid discussion on the legal

aspect. It may be pointed out that the CBDT has issued one

Circular No.65 way back on 02.09.1971 clarifying the position

in respect of income by way of interest under Section 194 read

with Section 197(1) and (2) of the Act as under:

"1..........Where the supplier of goods makes over the usance bill/hundi to his bank which discounts the same and credits the net amount to the supplier‟s account straightaway without waiting for realization of the bill on due date, the property in the usance bill/hundi passes on to the bank and the eventual collection on due date is a receipt by the bank on its own behalf and not on behalf of the supplier. For such cases of immediate discounting the net payment made by the bank to the supplier is in the nature of a price paid for the bill. Such a payment cannot technically be held as including interest and therefore no tax need be deducted at source from such payments by the bank. Further, the buyer need not deduct any tax from the payment made by him on due date to the bank in respect of such discounted bill inasmuch as these payments are to a bank or a banking co-operative society, conforming to the exemption granted by section 194A(3)(iii)(a) of the Income-tax Act, 1961.

2. On the other hand where there is no immediate discounting and the bank merely acting as agent receives on the expiry of the period the payment for the bill from the buyer on behalf of the supplier and credits it to him accordingly, the bank receives interest on behalf of the supplier and the instructions contained, in Board‟s above- mentioned Circular 7th November, 1970, would apply and the buyer will have to deduct the tax from the interest."

12. There is another Circular No.674 dated 22.03.1993 directly on

the point as it relates to TDS on interest other than "interest on

securities". In this Circular, the Board has clarified the issue in

the following manner:

"3. A question has been recently raised as to whether the difference between the issue price and face value of these instruments should be treated as „interest‟ in which case it would be liable to deduction of tax at source under section 194A of the Income-tax Act, 1961, or, it should be treated as „discount‟ which is not liable to deduction of tax at source.

4. It is clarified for the information of all concerned that the difference between the issue price and the face value of the Commercial Papers and the Certificates of Deposits is to be treated as „discount allowed‟ and not as „interest paid‟. Hence, the provisions of the Income-tax Act relating to deduction of tax at source are not applicable in the case of transactions in these two instruments."

13. Having regard to the aforesaid, we are of the opinion that no

substantial question of law arises, as the matter stands settled

by the dicta of the Supreme Court as well as clarification of

CBDT itself.

14. These appeals are accordingly dismissed.

(A.K. SIKRI) JUDGE

(M.L. MEHTA) JUDGE FEBRUARY 17, 2011 pmc