CA Vinamar Gupta

CA Vinamar GuptaEver since the advent of section 14A in the statute, it has evoked squall of controversy. While the purpose of the section was to compute taxable income by whisking away the expenses attributable to exempt income, the tax department always tried to use it for fetching some more fortunes. In this article attempt has been made to look into real objective of statutory provisions through latest judicial pronouncements.

Judicial Pronouncements before Inserting section 14A

  1. Supreme Court in Indian Bank Limited [1965] 56 ITR 77 (SC): Asessee carrying on business of banking, borrowed money and purchased securities in normal course of business .Of these, interest income from some types of securities were exempt from income-tax as per Government notification . It was held that proportionate interest which would be payable on money borrowed for purchase of securities exempt from tax, would even be allowed as deduction.
  2. Again in Maharashtra Sugar Mills Ltd [1971] 82 ITR 452 (SC) it was held that full commission paid to managing agent for cultivation of sugar cane as well for manufacture of sugar was allowable as deduction, though income from cultivation of sugar cane is exempt.
  3. Similar decision was rendered by Supreme Court in Water fall Estates [1996] 85 TAXMAN 689 (SC) in respect of business of cultivating and curing tea and coffee.
  4. Rajasthan State Warehousing Corpn [2000] 109 TAXMAN 145 (SC) FEBRUARY 23, 2000

The appellant, a State Government Corporation, derived its income from interest, letting out warehouses and administrative charges for procurement of foodgrains while working for the Food Corporation of India as well as the State Government. It claimed deduction under section 37 in computing its income under the head ‘Profits and gains of business or profession’. The ITO allowed only so much of the expenditure as could be allocated to the taxable income and disallowed the rest of it which was referable to the non-taxable income, being exempt under section 10(29).Held by apex Court that allow ability of expenditure will depend on fact whether all ventures carried on by him constituted one indivisible business or not; if they do, entire expenditure would be permissible deduction but if they do not, principle of apportionment of expenditure will apply. In Present case, where income derived by assessee from various ventures was found to be earned in course of one and indivisible business though part of income was exempt under section 10(29), apportionment of expenditure and allowing deduction of only that portion of income which was referable to taxable income was unsustainable.

Statutory Developments in Law on Section 14A

a) As a fall out of Rajasthan Warehousing Corpn (supra) Section 14A was inserted retrospectively by Finance Act 2001 w.e.f. AY 1962-63 as under:

For the purposes of computing the total income under this Chapter, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under this Act

Provided that nothing contained in this section shall empower the Assessing Officer either to reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year beginning on or before the 1st day of April, 2001

The Memorandum explaining the provisions of the Finance Bill, 2001 stated the following reasons for insertion of the provision :

“Certain incomes are not includible while computing the total income as these are exempt under various provisions of the Act. There have been cases where deductions have been claimed in respect of such exempt income. This in effect means that the tax incentive given by way of exemptions to certain categories of income is being used to reduce also the tax payable on the non exempt income by debiting the expenses incurred to earn the exempt income against taxable income. This is against the basic principles of taxation whereby only the net income, that is, gross income minus the expenditure, is taxed. On the same analogy, the exemption is also in respect of the net income. Expenses incurred can be allowed only to the extent they are relatable to the earning of taxable income.

It is proposed to insert a new section 14A so as to clarify the intention of the Legislature since the inception of the Income-tax Act, 1961, that no deduction shall be made in respect of any expenditure incurred by the assessee in relation to income which does not form part of the total income under the Income-tax Act”

b) There after Finance Act 2006 further expanded section 14A to include following further clauses w.e.f. AY 2007-08 as under :

(2) The Assessing Officer shall determine the amount of expenditure incurred in relation to such income which does not form part of the total income under this Act in accordance with such method as may be prescribed90, if the AssessingOfficer, having regard to the accounts of the assessee, is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under this Act.

(3) The provisions of sub-section (2) shall also apply in relation to a case where an assessee claims that no expenditure has been incurred by him in relation to income which does not form part of the total income under this Act

The above sections were not inserted retrospective from AY 1962-63 unlike the earlier law on the subject

c) There after Rule 8D was inserted w.e.f. 24-03-2008 as under:

(1) Where the Assessing Officer, having regard to the accounts of the assessee of a previous year, is not satisfied with—

(a)the correctness of the claim of expenditure made by the assessee; or
(b)the claim made by the assessee that no expenditure has been incurred,

in relation to income which does not form part of the total income under the Act for such previous year, he shall determine the amount of expenditure in relation to such income in accordance with the provisions of sub-rule (2).

(2) The expenditure in relation to income which does not form part of the total income shall be the aggregate of following amounts, namely :—

(i)the amount of expenditure directly relating to income which does not form part of total income;
(ii)in a case where the assessee has incurred expenditure by way of interest during the previous year which is not directly attributable to any particular income or receipt, an amount computed in accordance with the following formula, namely :—
A ×B
C
WhereA =amount of expenditure by way of interest other than the amount of interest included in clause (i) incurred during the previous year ;
B =the average of value of investment, income from which does not or shall not form part of the total income, as appearing in the balance sheet of the assessee, on the first day and the last day of the previous year ;
C =the average of total assets as appearing in the balance sheet of the assessee, on the first day and the last day of the previous year ;
(iii)an amount equal to one-half per cent of the average of the value of investment, income from which does not or shall not form part of the total income, as appearing in the balance sheet of the assessee, on the first day and the last day of the previous year.

(3) For the purposes of this rule, the “total assets” shall mean, total assets as appearing in the balance sheet excluding the increase on account of revaluation of assets but including the decrease on account of revaluation of assets.]

Judicial Pronouncements for applicability on period prior to introduction of R. 8D:

a) Held by ITAT Delhi that since rule 8D was not applicable to years prior to 2008-09, Held that Assessing Officer was not justified in invoking provisions of rule 8D for assessment year 2005-06- GDA Finvest & Trade (P.) Ltd [2015] 57 taxmann.com 62 (Delhi – Trib.) OCTOBER 10, 2014

b) Where assessee’s case belonged to Assessment year 2007-08, when rule 8D was not applicable, disallowance under section 14A could not be computed as per rule 8D- Consolidated Finvest & Holdings Ltd. SEPTEMBER 10, 2014 [2014] 51 taxmann.com 187 (Delhi – Trib.)

Judicial Interpretation of Section 14A

1Where there is no actual receipt of exempt income

a)    CBDT in Circular 5/2014 dtd 11-02-2014 has stated that disallowance u/s 14A to be made even if no exempt income is earned by the taxpayer

b)    However respective High Courts have held that the expression ‘does not form part of the total income’ in section 14A of the Act implies that there should be an actual receipt of income which is not includible in total income during the previous year for the purpose of disallowing expenditure under section 14A of the Act and therefore that section 14A of the Act would not apply if no exempt income was received or was receivable during the relevant previous year.

[ Punjab and Haryana High Court in CIT vs. M/s. Lakhani Marketing Inc; CIT Vs. Hero Cycles Limited, 323 ITR 518 and CIT Vs. Winsome Textile Industries Ltd 319 ITR 204 ; Gujarat High Court in CIT vs. Corrtech Energy (P.) Ltd. [2014] 223 Taxmann 130 (Guj); Allahabad High Court in CIT vs. Shivam Motors (P) Ltd; Delhi High Court in Holcim India and Cheminvest]

2Dissatisfaction of Assessing Officer regarding claim of the assessee regarding expenditure in respect of exempt income

a)    It is only if the Assessing Officer is not satisfied with the correctness of the claim of the assessee, in both cases, that the Assessing Officer gets jurisdiction to determine the amount of expenditure incurred in relation to such income which does not form part of the total income under the said Act in accordance with the prescribed method.

Maxopp Investment (P) Ltd. v. CIT (2012) 347 ITR 272 (Del); Taikisha Engineering India Ltd. 370 ITR 338 (Del.); I.P.SUPPORT SERVICES INDIA (P) LTD[24-09-2015](Del HC)

b)    If the AO does not deal with the assessee’s submissions and merely says “not acceptable” it means he has not recorded proper satisfaction-U. P. Electronics Corporation Ltd vs. DCIT (ITAT Lucknow)[23-01-2015]

c)     Section 14A requires Assessing Officer to record satisfaction that interest bearing funds have been used to earn tax free income based upon credible and relevant evidence. Abhishek Industries Ltd [2015] 56 taxmann.com 391 (Punjab & Haryana) JANUARY  27, 2015.

d)    Supreme Court has admitted SLP of the department against this decision

e)    Once assessee makes claim before Assessing Officer that no expenditure is attributable to earning of dividend income, Assessing Officer is required under statute to satisfy himself having regard to accounts of assessee about correctness of claim of assessee; otherwise he cannot proceed to make disallowance under section 14A(2)- Raptakos Brett & Co. Ltd. [2015] 58 taxmann.com 115 (Mumbai – Trib.) JUNE  10, 2015

3Extent of Expenditure to be disallowed

a)    Disallowance u/s 14A requires a finding of incurring of expenditure. If it is found that for earning exempted income no expenditure has been incurred, disallowance u/s 14A cannot stand. –Hero Cycles (P & H High Court)[07-11-2009]

b)    Where the entire tax exempt income is Rs. 48,90,000/-, the disallowance ultimately directed works out to nearly 110% of that sum, i.e., Rs. 52,56,197/-. By no stretch of imagination can Section 14A or Rule 8D be interpreted so as to mean that the entire tax exempt income is to be disallowed. The window for disallowance is indicated in Section 14A, and is only to the extent of disallowing expenditure “incurred by the assessee in relation to the tax exempt income”. This proportion or portion of the tax exempt income surely cannot swallow the entire amount as has happened in this case. -Joint Investments Pvt. Ltd vs. CIT (Delhi High Court) February 25, 2015

c)     Disallowance u/s.14A cannot exceed the amount of exempt income DCM Ltd vs. DCIT (ITAT Delhi)September 1, 2015

d)    The assessee only received Rs.1,82,362 as dividend income, therefore, there is no question of disallowance of Rs.14,58,412 by invoking section 14A r.w. Rule 8D. At best, if any disallowance could be made that can be restricted to Rs. 1,485 which were claimed as demat charges. Disallowance u/s 14A r.w. Rule 8D cannot exceed the exempt income. Daga Global Chemicals Pvt. Ltd vs. ACIT (ITAT Mumbai)[01-01-2015]

e)    Expenditure (like audit fees) required to be incurred irrespective of income cannot be disallowed– ITO vs. Pioneer Radio Training Services Pvt. Ltd (ITAT Delhi)[19-01-2015]

3Impact of use of owned and borrowed funds for subscribing tax free income yielding investments

a)       Even if assessee had utilized its own funds for making investments   which had resulted in income which did not form part of total   income under Act, expenditure incurred in earning of that income would have to be disallowed under section 14A, read with rule 8D which was to be determined by Assessing Officer. HDFC Bank Ltd. [2015] 61 taxmann.com 361 (Mumbai – Trib.) SEPTEMBER  23, 2015 

b)    If Rule 8D applies, assessee’s claim that interest is not disallowable on ground of “own funds” is not acceptable- Taikisha Engineering India Ltd. 370 ITR 338 (Del.)

c)     Where assessee invested its own funds in shares resulting in earning of dividend income exempt from tax, impugned disallowance made by Assessing Officer by invoking provisions of section 14A, read with Rule 8D was not sustainable- Bandekar Brothers (P.) Ltd [2015] 63 taxmann.com 198 (Panaji – Trib.) JUNE  9, 2015

d)     Where assessee claimed that interest bearing borrowed funds were utilized entirely for purpose of business and investment in tax free bonds had been made out of its own funds and Assessing Officer having noticed that assessee had kept all funds in one common pool partly disallowed interest paid on borrowed funds applying section 14A, disallowance of interest paid not justified- SBI DHFL Ltd [2015] 63 taxmann.com 345 (Bombay) APRIL  8, 2015

e)    Since assessee’s share capital with reserves and surplus was far in excess of amount invested in securities fetching exempt income, interest could not be disallowed T And T Motors Ltd [2015] 58 taxmann.com 295 (Delhi – Trib.) JANUARY  7, 2015

f)      Where it was apparent from records that assessee had sufficient funds for making investments in shares and interest free bonds and it had not used borrowed funds for such purpose, Assessing Officer was not justified in invoking provisions of section 14A in order to disallow one per cent of interest expenses incurred for earning exempt income  Torrent Power Ltd [2014] 44 taxmann.com 441 (Gujarat) FEB  4, 2014

g)    Where investment put in shares was fully financed out of sale proceeds of shares held as long term capital investment and income earned on sale of those shares was also offered as long term capital gains, there was no reason for disallowance of interest expenditure by invoking provisions of section 14A read with rule 8D- Sanjay Kumar J. Poddar [2015] 54 taxmann.com 260 (Mumbai – Trib.) NOVEMBER  26, 2014

h)    If the investment in the shares is out of the non-interest bearing funds, disallowance u/s 14A is not sustainable; [Hero Cycles (P&H)]

4Impact of disallowance u/s 36(1)(iii):

Payment of interest which was already disallowed under section 36(1)(iii), could not be considered again for section 14A disallowance as it would result in double addition- Snowtex Investment Ltd [2015] 64 taxmann.com 157 (Kolkata – Trib.) NOVEMBER  6, 2015 

5Impact on calculation of book profits u/s 115JB

a)    As per ITAT Mumbai in Viraj Profiles, ITA 4439/2013 addition u/s 115JB, with respect to disallowance u/s 14A has to be made even if assessee has no exempt income and no amount of expenditure relatable to exempt income is debited for the reason that S. 115JB starts with non obstanate clause.

b)    Where expenditure was disallowed by Assessing Officer by invoking provisions of section 14A while computing total income under normal provisions, said disallowance would be adopted while arriving at book profits under section 115JB- Sobha Developers [2015] 58 taxmann.com 107 (Bangalore – Trib.) JANUARY  9, 2015

c)     As per Chennai Tribunal in Beach Minerals Company (P.) Ltd. [2015] 64 taxmann.com 218 (Chennai – Trib.) AUGUST  6, 2015. Section 14A of the Act is a provision with fiction disallowing the deemed expenditure attributable to exempt income viz., dividend income U/s. 10 of the Act and Section 115JB of the Act is also a provision with fiction for payment of tax in respect of deemed income. Therefore while computing the profit for the purpose of Section 115JB of the Act another provision with fiction cannot be superimposed. Hence the question of increasing the ‘Book Profit’ due to the disallowance U/s. 14A of the Act will not arise.

d)     In the absence of exempt income, s. 14A disallowance cannot be added to s. 115JB book profits. There is no estoppel against the law. The mere fact that the assessee has accepted this disallowance affects that disallowance only and nothing more than that; it does not clothe such an adjustment, in computation of book profit under section 115JB, with legality. -Minda Sai Limited vs. ITO (ITAT Delhi)[09-01-2015]

6Where investment held for trading/control

a)    S. 14A Rule 8D does not apply to shares held as stock-in-trade; India Advantage Securities (Bom High Court) 14-04-15

b)    Where assessee had earned dividend from shares held as stock-in-trade, rule 8D would not be applicable so as to disallow related expenditure- Baljit Securities (P.) Ltd. [2015] 55 taxmann.com 191 (Kolkata – Trib.) OCTOBER  21, 2014

c)     Section 14A is attracted even in case of dividend income arising from shares held as stock in trade– Doubledot Finance Ltd. [2014] 49 taxmann.com 291 (Mumbai – Trib.) JULY  31, 2014

d)    Investments in subsidiaries & joint ventures are for strategic purposes and not for earning dividend and so the expenditure cannot be disallowed-U. P. Electronics Corporation Ltd vs. DCIT (ITAT Lucknow)

e)    Where primary object of investment was to acquire controlling stake in group concerns and not for earning an income out of that investment, provisions of section 14A could not be invoked- Selvel Advertising (P.) Ltd [2015] 58 taxmann.com 196 (Kolkata – Trib.) JANUARY  1, 2015

f)     Growth mutual funds do not yield dividend and so s. 14A/ Rule 8D does not apply, -Manugraph India Ltd vs. DCIT (ITAT Mumbai) [25-03-2015]

7Whether Rule 8D computation can be dispensed with :
a)    Tribunal in assessee’s own case had held that expenditure incurred towards two months salary for officers and staff in investment division could be considered as disallowance to be made under section 14A Since assessee in terms with aforesaid direction of Tribunal had already disallowed certain expenditure, impugned disallowance made by Assessing Officer by invoking provisions of section 14A was to be deleted- State Bank of Hyderabad [2015] 63 taxmann.com 322 (Hyderabad – Trib.) AUGUST  14, 2015b)    Where Tribunal found that only administrative expenditure was incurred and that was estimated at 5 per cent of dividend earned, it was justified in restricting disallowance under section 14A at 5 per cent of dividend income- Teletronics Dealing Systems (P.) Ltd SEPTEMBER  25, 2014 [2015] 53 taxmann.com 20 (Bombay)

c)     When assessee itself admitted that a disallowance had to be made with regard to expenditure for earning of income which was exempted from taxation under Act, such expenditure had to be computed not on ad hoc basis by estimating same but as per method prescribed under rule 8D(2)- K.H. Arind (P.) Ltd. [2015] 64 taxmann.com 409 (Chennai – Trib.) JUNE  26, 2015

d)    Since assessee had maintained proper accounts, duly audited and based his claim of having incurred lower expenditure than that as per statutory prescription of rule 8D and revenue had not made any inquiry regarding expenditure stood debited in assessee’s account books, assessee’s claim of disallowance of Rs. 1 lakh under section 14A was to be allowed- Fali S. Nariman [2015] 56 taxmann.com 155 (Mumbai – Trib.) JANUARY  30, 2015 

8Penalty for Disallowance u/s 14A:

No penalty could be levied under section 271(1)(c) on account of disallowance of expenses incurred on earning exempt income where assessee had disclosed both figures of expenses as well as income in its profit and loss account filed along with return of income- Aarge Drugs (P.) Ltd. [2015] 61 taxmann.com 254 (Chandigarh – Trib.) JULY  23, 2015 

9Calculation aspects:

a)     In computing the “average value of investment”, only the investments yielding non-taxable income have to be considered and not all investments- ACB India Ltd vs. ACIT (Delhi High Court)[24-03-2015]

b)    The Tribunal held that if investments were made in mutual funds out of non-interest bearing funds then such investments in mutual funds had to be excluded from the total tax free investments as well as total assets for the purpose of calculation of interest disallowable under Rule 8D(2)(ii) of the Rules. ACIT v Ashapura Minechem Ltd – (2015) 44 CCH 0576 Mum Trib

10Interest incurred on taxable income has also to be excluded while computing the disallowance to avoid incongruity

Bharti Overseas Pvt. Ltd (Delhi High Court) December 17, 2015

·       In Godrej & Boyce Mfg. Co. when constitutional validity of R.8D was under challenge, department filed an affidavit saying that “…………….. amount of expenditure by way of interest that will be taken will exclude any expenditure by way of interest which is directly attributable to any particular income or receipt (for example- any aspect of the assessee’s business such as plant/machinery et.)…………..”

•        On the basis of department’s undertaking in Godrej & Boyce Mfg Co. , ITAT Delhi in Champion Commercial and ITAT Cochin in Geojit Investment Services Ltd vs. ACIT held that Interest incurred on taxable income has also to be excluded to avoid incongruity & in view of Department’s stand before High Court.

•        Now held by Delhi High Court that there fore ITAT in present case was correct in holding that common interest expenses’ that was required to be allocated would have to exclude both expenditures, i.e., interest attributable to tax exempt income as well as that attributable to taxable income.

•        For Rule 8 D (2) (ii) to apply there has to be some expenditure by way of interest “which is not directly attributable to any particular income or receipt.” If there is no such expenditure, as has been found factually by the ITAT in the present case, then the question of applying the formula there under will not arise.

Conclusion: The purpose of section 14A was to set right a situation where tax incentive given by way of exemptions to certain categories of income were being used to reduce also the tax payable on the non exempt income by debiting the expenses incurred to earn the exempt income against taxable income. From the judicial pronouncements stated above although there are opinions on both sides of the law, by and large the judiciary has adopted an interpretation which meets the ends of logic and is equitable and takes away the sting and stigma of incongruent approach of calculating taxable income.

(Author :CA Vinamar Gupta, 53-E, DayaNand Nagar-II, Lawrence Road, Amritsar, Mob: 9356048001, ca.skumargupta@gmail.com)

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