Case Law Details
Supreme Court upheld Dividend-Stripping Law in the case of Wall fort Shares & Stock Brokers
CIT Vs. Walfort Share & Stock Brokers (Supreme Court)-A Five Member Special Bench of the Tribunal (96 ITD 1 (Mum) (SB)) and the Bombay High Court (310 ITR 421 (Bom)) held that the ‘loss’ incurred by an assessee in ‘dividend-stripping’ transactions cannot be disallowed on the ground that it was ‘tax-planning‘.
In respect of AY 2000- 01, the assessee bought units of a mutual fund on 24.3.2000 (the record date) for Rs. 17.23 each and immediately became entitled to receive dividend of Rs. 4 per unit. After the dividend payout, the NAV of the unit fell by Rs. 4 to Rs. 13.23. The assessee redeemed the units on 27.3.2000 at Rs. 13.23 per unit and claimed a loss of Rs. 4. The dividend of Rs. 4 was claimed exempt u/s 10(33). The AO & CIT (A) rejected the claim of loss on the ground that the loss was “artificial” and could not be allowed. On appeal by the assessee, a Five Member Special Bench of the Tribunal 96 ITD 1 (Mum) (SB) upheld the claim and this was confirmed by the Bombay High Court 310 ITR 421 (Bom). On appeal to the Supreme Court, HELD, dismissing the appeal:
(i) The argument of the department that the loss (the difference between the purchase and sale price of the units) constitutes “expenditure incurred” for earning tax-free income and was liable to be disallowed u/s 14A is not acceptable. The difference arose as a result of the dividend payout. The said “pay-out” is not “expenditure” to fall within s. 14A. For attracting s. 14A, there has to be a proximate cause for dis allowance, which is its relationship with the tax exempt income, which is absent in the present case.
(ii) The argument of the department that the transaction was entered into in a pre- meditated manner and that the loss is not genuine is not acceptable because the transaction was a “sale”, the sale-price and dividend was received by the assessee. The assessee made use of the provisions of s. 10(33), which cannot be called an “abuse of law”. Even assuming that the transaction was pre- planned, there is nothing to impeach the genuineness of the transaction. With regard to McDowell & Co 154 ITR 148(SC), in the later decision in Azadi Bachao Andolan 263 ITR 706(SC) it has been held that a citizen is free to carry on its business within the four corners of the law. Mere tax planning, without any motive to evade taxes through colourable devices is not frowned upon even in McDowell & Co. Accordingly, the losses pertaining to exempted income cannot be disallowed prior to s. 94(7).
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