2024 (9) TMI 1754 - AT - Income Tax

Disallowance u/s 14A r.w.r. 8D - whether exempt income has accrued or received during the previous year relevant to an assessment year and expenditure has been incurred during the said previous year in relation to such exempt income? - DR argued that the Finance Act amended the Finance Ac 2022 amended section 14A with effect from 01/04/2022 provided that provisions shall apply whether or not exempt income has accrued arisen or received is clarificatory in nature and thus applicable retrospectively HELD THAT - Amendment of section 14A has no retrospective effect. The same issue is considered by the order of Era Infrastructure India Ltd 2022 (7) TMI 1093 - DELHI HIGH COURT held that amendment of section 14A which is for removal of doubts cannot be presumed to be retrospective even where such language is used if it alters or changes the law as it earlier stood. Violation of section 94(7) - Considering the violation of section 94(7) the reasonable opportunity for verification was denied to the AO during the appeal hearing. We consider the prayer of the ld. DR. We remit the matter to the file of the ld. AO with following direction that the assessee is allowed to produce the details of purchase of shares and recorded dates for verification which was filed before CIT(A) during the appeal proceeding. AO is directed to verify as per the provisions of section 94(7).

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal were:

(i) Whether the amended provisions of section 14A of the Income-tax Act, as introduced by the Finance Act, 2022, apply retrospectively to disallow expenditure incurred in relation to exempt income, even if no exempt income has accrued or been received during the relevant previous year.

(ii) Whether the amended provisions of section 14A nullify prior judicial precedents which held that no disallowance under section 14A can be made in the absence of exempt income.

(iii) Whether the Commissioner of Income-tax (Appeals) was justified in deleting the addition of Rs. 86,13,425/- made under section 14A read with Rule 8D(2)(iii) without appreciating that the assessee failed to provide evidence that borrowed funds on which interest was paid were exclusively used for earning taxable income.

(iv) Whether the deletion of addition made under section 94(7) of the Act was justified, considering that earning exempt dividend income and incurring loss on the same investment constitutes tax evasion through dividend stripping, thereby attracting section 94(7).

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i) & (ii): Applicability and Retrospective Effect of Amended Section 14A

Legal Framework and Precedents: Section 14A of the Income-tax Act empowers disallowance of expenditure incurred in relation to exempt income. The Finance Act, 2022 amended section 14A to clarify that the provisions apply "irrespective of whether exempt income has accrued or been received" during the relevant previous year. The revenue contended that this amendment is clarificatory and retrospective. The Department relied on a coordinate bench decision (ITAT Gauhati in ACIT vs Williamson Financial Services Ltd) holding the amendment retrospective.

On the other hand, the assessee relied on authoritative High Court decisions, including Bombay High Court in HDFC Bank Ltd vs DCIT and Delhi High Court in PCIT vs Era Infrastructure India Ltd, which held that the amendment is not retrospective and does not override earlier judicial precedents that no disallowance under section 14A can be made if no exempt income is earned.

Court's Interpretation and Reasoning: The Tribunal noted the conflicting judicial views and observed that the amendment, though expressed as clarificatory, changes the law as it stood. Following the ratio in the cited High Court decisions, the Tribunal held that the amendment cannot be presumed retrospective if it alters the existing legal position. The Tribunal further noted that the Supreme Court's decision on the matter was pending but no stay was granted on the High Court rulings.

Application of Law to Facts: The assessee had declared exempt dividend income and claimed exemption under sections 10(34) and 10(35). The Assessing Officer (AO) made disallowance under section 14A, which was partly accepted and partly deleted by the CIT(A). The Tribunal upheld the CIT(A)'s approach and declined to apply the retrospective amendment to increase disallowance.

Treatment of Competing Arguments: The Tribunal carefully balanced the revenue's argument for retrospective application against binding High Court precedents favoring non-retrospective application. It found the latter more persuasive and binding in absence of Supreme Court intervention.

Conclusion: The Tribunal dismissed the revenue's grounds challenging the CIT(A)'s treatment of section 14A disallowance, holding that the amendment does not apply retrospectively.

Issue (iii): Deletion of Addition under Section 14A Read with Rule 8D(2)(iii)

Legal Framework and Precedents: Section 14A read with Rule 8D(2)(iii) mandates disallowance of expenditure incurred in relation to exempt income, including interest on borrowed funds used to earn exempt income. The AO added Rs. 86,13,425/- on the ground that the assessee failed to prove that borrowed funds were exclusively used for taxable income.

Court's Interpretation and Reasoning: The CIT(A) computed disallowance based on weighted average investments excluding stock in trade, resulting in a lower disallowance amount. The Tribunal found that the CIT(A) correctly applied judicial precedents, including the Supreme Court decision in Maxopp Investment Ltd vs CIT, which excludes stock in trade from the calculation under section 14A.

Key Evidence and Findings: The assessee's investments were predominantly in stock in trade, and the dividend income was largely exempt. The assessee had already made a suo motu disallowance of Rs. 42,31,712/-, which was accepted. The CIT(A) restricted further disallowance to Rs. 17,88,127/- after appropriate computation.

Application of Law to Facts: The Tribunal noted the absence of evidence that borrowed funds were directly attributable to earning taxable income only and accepted the CIT(A)'s computation methodology as reasonable and consistent with law.

Conclusion: The Tribunal upheld the deletion of the addition of Rs. 86,13,425/- and confirmed the restricted disallowance computed by the CIT(A).

Issue (iv): Applicability of Section 94(7) and Deletion of Addition

Legal Framework: Section 94(7) aims to counter tax evasion through dividend stripping, where a taxpayer earns exempt dividend income but incurs loss on sale of the same shares within a specified period. Conditions include acquisition within 3 months before the record date, sale within 3 months after, and receipt of exempt dividend.

Court's Interpretation and Reasoning: The AO confirmed an addition of Rs. 72,20,70,412/- under section 94(7) due to non-fulfillment of conditions and lack of supporting documents. The assessee contended that the classification of investments was an inadvertent mistake and submitted requisite details before the CIT(A). The CIT(A) accepted the assessee's explanation and deleted the addition.

Key Evidence and Findings: The assessee provided details of purchase dates, sale dates, and dividend receipt to satisfy section 94(7) conditions, but these were not verified by the AO before the CIT(A) order. The revenue argued that the AO was not given a reasonable opportunity for verification.

Application of Law to Facts: The Tribunal agreed with the revenue that the AO was denied reasonable opportunity for verification and remanded the matter to the AO for fresh adjudication with directions to verify the documents and afford hearing to the assessee.

Treatment of Competing Arguments: The Tribunal balanced the assessee's submission of documents against the procedural fairness owed to the revenue and AO, emphasizing the need for verification before deletion of addition.

Conclusion: The Tribunal set aside the CIT(A) order on this issue and remanded the matter to the AO for verification and fresh decision in accordance with law.

3. SIGNIFICANT HOLDINGS

"The amendment of section 14A has no retrospective effect and cannot be presumed to be retrospective if it alters or changes the law as it earlier stood."

"The stock in trade cannot be included in the computation of disallowance under section 14A read with Rule 8D."

"Reasonable opportunity of verification and hearing must be afforded to the Assessing Officer before deletion of addition under section 94(7) can be confirmed."

"The Tribunal remits the matter relating to section 94(7) to the Assessing Officer with directions to verify the details submitted by the assessee and to decide the issue afresh after affording reasonable opportunity of hearing."

Final determinations:

- The revenue's appeal against the CIT(A)'s order on section 14A disallowance (grounds i, ii, iii) is dismissed.

- The revenue's appeal on section 94(7) addition (ground iv) is allowed for statistical purposes and remanded for fresh adjudication.

- The assessee's cross objection is dismissed as withdrawn.