THE COMMISSIONER OF INCOME TAX III vs. SHAMBHU MERCANTILE LTD.

IN THE HIGH COURT OF DELHI AT NEW DELHI ITA 49/2009 COMMIISONER OF INCOME TAX-III ?.. Appellant Through: Mr Sanjeev Sabharwal, Advocate Versus SHAMBHU MERCANTILE LTD ?.. Respondent Through: None . . CORAM HON?BLE MR JUSTICE VIKRAMAJIT SEN HON?BLE MR JUSTICE RAJIV SHAKDHER . ORDER 10.02.2009 . 1. This is an appeal preferred by the Revenue against the judgment dated 29.02.2008 passed by the Income Tax Appellate Tribunal (hereinafter referred to as the ?Tribunal?) in ITA No. 2056/Del/2006 pertaining to assessment year 2004- 05. The only issue which arose for consideration was whether the capital loss incurred by the assessee on redemption of units of mutual funds was liable for disallowance in view of the provisions of Section 94(7) of the Income Tax Act, 1961 (hereinafter referred to as the ?Act?). 1.1 In order to appreciate the issue which had arisen before the authorities below the following brief facts are require to be noted. 2. The assessee, which is a public limited company, is engaged in the business of sale/purchase and trade in stock/units and units of mutual fund. During the relevant assessment year the assessee purchased units of mutual funds which included funds such as Tata Index Fund Nifty Plan Option ? A and IL and FS Index Fund Nifty Plan (in short ? mutual funds?). The assessee undisputedly had received dividend income on the said units which were exempt under Section 10(34) of the Act. The assessee during the relevant year sold the said units. The loss which the assessee suffered on sale of said units was sought to be set off against profits on sale of said units in respect of said mutual funds. The assessee?s case was picked up for scrutiny and accordingly, notices under Section 143(2) of the Act was issued and served upon the assessee. During the course of scrutiny the Assessing Officer raised queries with respect to the purchase and sale of the aforementioned units of mutual funds. After examining the details submitted by the representative of the assessee, the Assessing Officer came to the conclusion that the assessee had indulged in a practice which is popularly known as ?dividend stripping? whereby a person purchases a cum-dividend units in respect of which dividend receivable is exempt from income tax. After dividend is received the purchaser sells the units at a price which is obviously less than the price at which the units had been purchased, since cost of purchase of units at the relevant included the dividend receivable on the units. The resultant loss on sale of units is sought to be set off against other income. Resultantly unintended benefit flows to such a purchaser. 2.1 In the aforesaid circumstances the Assessing Officer thus invoked the provisions of Section 94(7) of the Act which was introduced precisely for this purpose by the legislature, and disallowed the capital loss incurred by the assessee on redemption of the said units. The assessee being aggrieved by the . . order passed by the Assessing officer carried the matter in appeal to the Commissioner of Income Tax (Appeals) [hereinafter referred to as the ?CIT(A?)]. Before the CIT(A), the assessee contended that the provisions of Section 94(7) of the Act as it stood at the relevant time, that is, prior to its amendment w.e.f. 01.04.2005 were not attracted to the instant case on account of the fact that the conditions prescribed in sub-Section (7), clauses (a) to (c) which were cumulative in nature, were not satisfied. 2.2 The CIT(A) agreed with the submission made by the assessee that the conditions prescribed in clauses (a) to (c) of sub-Section (7) of Section 94 were cumulative in nature, and since they were not fulfilled in respect of the transactions in issue the provisions of Section 94(7) of the Act could not have been invoked to disallow the capital loss incurred by the assessee. In reaching this conclusion the CIT(A) also took recourse to circular No. 14 of 2001 of the Central Board of Direct Taxes (hereinafter referred to as the ?CBDT?). 3. The Revenue being aggrieved by the order of the CIT(A) preferred an appeal to the Tribunal. The Tribunal by the impugned judgment sustained the view taken by the CIT(A). As a consequence of the impugned judgment the Revenue is in appeal before us. 4. We have heard the learned counsel for the Revenue Mr Sanjeev Sabharwal. In the present case the facts are not disputed. The only question is whether the conditions laid down in sub-Section (7) clause (a) to (c) of the Act have to be read cumulatively or, as contended by the Revenue on a stand alone basis. It is important to mention at this stage that Section 94(7) of the Act was inserted in the statute by virtue of the Finance Act, 2001 w.e.f. 01.04.2002. In respect of transactions prior to the insertion of this Section this court in the case of CIT Vs.Vikramaditya [2006] 287 ITR 268 has sustained such like transactions. In the instant case we are concerned with the provisions of Section 94(7) of the Act as it stood prior to the amendment carried out by the Finance Act No.2, 2004 w.e.f. 01.04.2005. The relevant provision reads as follows:- ?where (a) any person buys or acquires any securities or unit within a period of three months prior to the record date; (b) such person sells or transfers such securities or unit within a period of three months after such date; (c) the dividend or income on such securities or unit received or receivable by such person is exempt, then, the loss, if any, arising to him on account of such purchase and sale of securities or unit, to the extent such loss does not exceed the amount of dividend or income received or receivable on such securities or unit, shall be ignored for the purposes of computing his income chargeable to tax.? . 4.1 A plain reading of the provision indicates that the conditions are cumulative. The reason being that clauses (a) and (b) of sub-Section 7 of Section 94 provided for a statutory period both prior to and after the record date in respect of securities or units [as provided in Clause(c)] the dividend or income of which whether received or receivable is exempt under the Act. It is only in a case where a transaction has all three components as prescribed in clauses (a), (b) and (c) of sub-section (7) of Section 94 and if a loss is occasioned on purchase and sale of such security or unit then to the extent such loss does not exceed the amount of dividend or income received or receivable it is to be ignored for the purposes of computing income of the assessee chargeable to tax. The position is best explained by a reference to the information pertaining to transactions in issue which is set out in a tabular form which finds mention in the impugned judgment. The same for the sake of convenience is extracted below:- S. No. Name of Mutual Fund . . Date of purchase Purchase amount (in Rs.) Record date of dividend Dividend amount (in Rs.) Date of redemption 1. Tata Index Fund Nifty Plan Option- A 25.11.03 1,00,00,000 25.11.03 (1st dividend) and 03.03.04 (next dividend) 29,89,774 and 9,96,591 09.03.04 2. Tata Index Fund Nifty Plan Option- A 25.11.03 1,50,00,000 25.11.03 (1st dividend) and 03.03.04 (next dividend) 44,84,662 and 14,94,887 09.03.04 3. IL and FS Index Fund Nifty Plan 16.12.03 4,00,00,000 16.12.03 1,18,35,408 17.03.04 . 4.2 A perusal of the table would show that the assessee during the assignment year under consideration had bought and redeemed units of mutual funds of Tata Index Fund Nifty Plan Option ? A and IL and FS Index Fund Nifty Plan. A perusal of information with respect to the transaction set out against serial no. 1 would show that the record date is 25.11.2003 and the date of purchase is also 25.11.2003 which is within the period of three months of the record date. The assessee received by way of dividend a sum of Rs 29,84,774/- on 25.11.2003 and a further sum of Rs 9,98,951/- on 03.03.2004 However, the sale of the said units took place on 09.03.2004 which was well beyond three months from the record date, that is, 25.11.2003. In respect of transaction against serial no. 2 the record date was again 25.11.2003. The assessee purchased the units on 25.11.2003 on which date the assessee received a dividend of Rs 44,84,662/-. The second dividend amounting to Rs 14,94,887/- was received on 03.03.2004 The units, however, were sold on 09.03.2004 This transaction clearly reveals that while the purchase was within the statutory period of three months, the sale of the said units was once again beyond the statutory period of three months from the record date. Similarly, in the transaction against serial no. 3 the assessee purchased the units of IL and FS Index Fund Nifty Plan on 16.12.2003 which was also the record date on which the assessee received a dividend of Rs 1,18,35,408/-. The sale, however, was beyond the statutory period of three months from the record date, which was 17.03.2004 5. In the circumstances it is clear that the aforesaid transactions are outside the net of Section 94(7) of the Act. The record date is really the median line for the statutory period prescribed both for purchase and sale which is three months on either side of the record date. It is only when the transaction is in relation to a security or a unit in respect of which the dividend or income received is exempt and it is within statutory period as prescribed in clauses (a) and (b) of sub-Section (7) of Section 94 that the loss, if any, would stand disallowed to the extent of the dividend or income received or receivable on such securities or units in computing the assessee?s . . income chargeable to tax. We are of the view that the reasoning of the authorities below cannot be faulted. No substantial question of law arises for our consideration. Resultantly the appeal is dismissed. . VIKRAMAJIT SEN, J. . . . . February 10, 2009/kk RAJIV SHAKDHER, J. ITA 49/2009 Page 7 of 7 . . 20