COFFEEDAY TRADING LIMITED ,BANGALORE vs. DCIT, CIRCLE-2(2)(1), BANGALORE

The Assessing Officer further noticed that the Assessee company has also claimed the expenses of Rs.5,89,57,582/- in respect of transfer of shares of M/s. Mind Tree Ltd., as detailed below. Stamp Duty Rs. 2,93,831 Brokerage Charges Rs.24,40,558 Exchange Transaction Tax Rs.2,54,558 SEBI Turnover Fees Rs.9,794 GST Rs.4,86,901 Advisory Fee to Kotak Mahindra Capital Co. Rs.5,34,77,600 Legal Fee to Cyril Amarchand Rs.19,94,244

The Assessing Officer further observed that vide notice dated 2nd September, 2022, the Assessee was asked to explain “as to why the advisory fees paid to Kotak Mahindra Capital Co. Ltd.” (in short “KMCCL”) and legal fee paid to M/s Cyril Amar Chand Mangal Das (in short “CAM”) should not be disallowed, as these are not incurred wholly and exclusively as cost of acquisition and not the cost of improvement for calculating capital gain.

The Assessee furnished its reply vide letter dated 7th Sep, 2020 stating that it held huge volume of shares of M/s. Mind Tree Ltd. for which it was difficult to find buyers. Thus, the Assessee engaged M/s. Kotak Mahindra Capital Co. Ltd. for providing advice and assistance in connection with sale of the said shares and sold shares to M/s. Larsen & Toubro Ltd. (L&T). The M/s CAM, drafted the comprehensive share purchase agreement referred and it was responsible for all legal compliance of sale of the said investment. Accordingly, the Assessee paid the advisory fees of Rs.5,34,77,600/- to Kotak Mahindra Capital Co. and legal fees of Rs.19,94,244/- to M/s CAM 7. Though the Assessing Officer perused the reply filed by the Assessee, however, not being satisfied with the same, ultimately made the addition of Rs.5,54,71,844/- on account of disallowance, by observing and holding as under: “5. On perusal of the details submitted by the assessee company and material available on records, it is noticed that the assessee company has claimed the advisory fees of Rs. 5,34,77,600/- and Rs. 19,94,2441- as expenses for the transfer of shares of M/s. Mind Tree Ltd during the year under consideration. However, the claim of the assessee company is not correct because the said expenses are not wholly and exclusively for transfer of the investment of a listed company and any payment of advisory fee or legal fee paid toward PMS activities are not allowed as expenses against sale of shares. Thus, expenses claimed of Rs. 5,54,71,844/- is being disallowed and added back to the total income of the assessee.”

The Assessee being aggrieved challenged the said additions by filing first appeal before the Ld. Commissioner and claimed as under: “That KMCCL provides investment banking and clearing services, mergers and acquisition advices, equity debit management, equity and derivative and professional clearing services. Further, KMCCL serves customers worldwide being leading company in the market providing financial advice in connection with shares transactions. The Assessee held around 20% of the shares of M/s. Mind Tree Ltd. The number of shares held by the group, including the promoter of group Late Shri V.G. Siddhartha are as under:

The Ld. Commissioner on examination of such submissions and the assessment order, observed that the AO doubted the expenses claimed by the Assessee in connection with transfer of shares and held the same were not incurred ‘wholly’ and ‘exclusively’, in connection with transfer of shares under the provisions of section 48(1) of the Act and the reasoning given by the Assessee before the AO to substantiate its claim, was not found justified.

The Ld. Commissioner further observed that the Assessee argued that it undertook significant efforts to find a buyer for the shares of Mind Tree Ltd., however could not sell the shares in possession on NSE / BSE through broker and was forced to go through one agency to sell the shares to single party, thus appointed KMCCL, however the Assessee failed to file such agreement before the AO even on being specifically asked by the AO.

The Ld. Commissioner further observed that at the instant appellate stage, the Assessee filed a communication from KMCCL, wherein writer states its role of financial advisory in connection with the sell / exit of all or portion of share in ‘Mind Tree Ltd.’, However the said document from KMCLL does not qualify as an agreement.

The Ld. Commissioner further observed that the Assessee has provided a receipt of consideration for the transfer of shares, which clearly specifies expenses related to the transfer of assets, such as securities transaction tax, brokerage, exchange transaction fee, SEBI and others taxes like GST. All the allowable direct expenses incurred wholly and exclusively in connection with the transfer of the shares are mentioned in the said receipt. Consequently, it can reasonably be concluded that the payments made to KMCCL cannot be treated as expenses wholly and exclusively in connection with the transfer of the impugned shares.

The ld. Commissioner also considered the claim of the Assessee that M/s KMCCL was engaged to ensure a fair price, identify a single buyer, safeguard the valuation of share and facilitate the transfer of controlling share to the buyer, however, these services are not entirely and exclusively in connection with transfer of share but rather aimed at achieving broader business objectives. Consequently, the payments made to KMCCL fall outside the scope of allowable expenses, under the provisions of section 48 of the Act.

The ld. Commissioner thus on the aforesaid reasons, ultimately affirmed the addition of Rs.5,34,77,600/- on account of disallowance of expenditure incurred being fees paid for rendering services to M/s. KMCCL by observing and holding as under: 6. “DECISION: I have carefully considered all the material available on records, the facts of the case, grounds of appeal and written submissions uploaded by the appellant. Appellant has furnished many documents/evidence in support of grounds of appeal taken at the appellate stage. The decision on the appeal preferred by the appellant is discussed in subsequent paras. 6.1 Ground no. 1 is general in nature, thus not adjudicated. 6.2 In ground no. 2, appellant contended that assessing officer erred in disallowing the expenditure of Rs.5,34,77,600/- paid as fees for services to M/s. Kotak Mahindra Capital Co., Ltd ignoring the fact that, the expenditure was incurred exclusively in connection with transfer of M/s. Mind Tree shares of which the Long Term Capital Gains was offered for tax. 6.2.1 In support of its claim, appellant filed written submission. Relevant part of the submission is reproduced as under: …………………………………………………………………………………………… …………………………………………………………………………………………… …………………………………………………………………………………………… ……………………… 6.2.2 To bring rival side on record, assessment order is perused. On perusal, it is seen that AO made additions on the following grounds: i) The expenses claimed by the assessee are not wholly and exclusively for transferred of shares of a listed company. Such expense are not allowable in calculation of long term capital gain on shares of a listed company.

We have heard the parties, perused the material available on record and given thoughtful consideration to the determinations made by the authorities below and the rival submissions made by the parties on the issue qua addition of Rs.5,34,77,600/- made and affirmed on account of disallowance of expenditure incurred being fees paid for rendering services to M/s. KMCCL. Admittedly, the Assessee before both the authorities below failed to file the substantive documents such as agreement executed by the Assessee with M/s KMCCL, relevant communications etc., which resulted into doubting the transaction and making the addition under consideration. Though, the Assessee filed a letter dated 18.01.2019 along with Annexure- A before us, claiming that the same pertains to arrangement made between M/s KMCCL and the Assessee company, in connection with sale / exit of a portion or all its share of ‘Mind Tree Ltd.’, however, the same prima facie seems to be an arrangement made by the Assessee and Mr. V.G. Siddhartha and KMCCL but not in the appropriate form of enforceable agreement, as per the provisions of Indian Contract Act and Indian Registration Act. The Assessee also provided the invoice for professional services. However, from the index filed by the Assessee, it is clear that no such documents were made available before the Authorities below and therefore the same remain to be examined by the Authorities below. In our considered view, the onus is upon the Assessee to establish its prima facie case and to discharge its onus cast by submitting the relevant documents in connection with the claim lodged, which in the instant, the Assessee has failed to establish and discharge, however it is a fact that issue involved also remain to be adjudicated in its right perspective and proper manner, specifically in the absence of relevant documents vis-à-vis enforceable agreement and other correspondences held with the Assessee and KMCCL and thus for just and proper and just decision of the case and substantial justice and fair play, we are of the considered view that by giving one opportunity to the Assessee for establishing its claim before the ld. Commissioner, would sub- serve the real justice and thus it would be appropriate to remand the issue qua addition under consideration to the file of the ld. Commissioner for decision afresh, suffice to say by affording a reasonable opportunity of being heard to the Assessee. We also deem it appropriate to direct the Assessee to produce the relevant document before the ld. Commissioner and in the case of default and / or not producing the relevant documents before the ld. Commissioner, the Assessee shall not be entitled for any leniency.

Thus, the instant issue qua addition of Rs.5,34,77,600/- is remanded to the file of the ld. Commissioner for decision afresh, in the aforesaid terms and for the statistical purposes.

Coming to the 2nd addition of Rs.19,94,244/-, which pertains to the expenditure incurred on account of payment made as legal fees to M/s CAM in connection with transfer of shares of M/s. Mind Tree Ltd., the Assessee before the Ld. Commissioner has claimed as under:

The Ld. Commissioner not being satisfied with the aforesaid claim of the Assessee, ultimately made and affirmed the addition under consideration, mainly on the reason that the Assessee failed to prove that expenses were incurred wholly and inclusively in connection with transfer of shares and also failed to file any formal agreement executed with M/s. CAM in this respect.

We have given thoughtful consideration to the peculiar facts and circumstances of the case and the issue under consideration. The Assessee before us has filed the invoice dated 22nd March, 2019 for the amount of Rs.62,39,500/- and other expenses to the tune of Rs.40,986/- (Rs.62,80,486/- in total) with regard to the transaction carried out in relation to the sale of share of a listed company by the assesse and Mr. V.G. Siddhartha. Admittedly in the invoice dated 22nd March, 2019, the name of the shares sold i.e., Mind Tree Ltd. is nowhere appearing. Even otherwise the bifurcation of the total amount of Rs.62,80,486/- is also not there and the details of Rs.19,94,244/- as involved in this case is also not there in the aforesaid invoice dated 22nd March, 2019 issued by M/s. CAM. The Assessee before us has also failed to produce such relevant details including any Agreement /assignment note and correspondences held between the Assessee and M/s CAM and the relevant agreements qua transactions carried out by the Assessee and the buyer of shares as allegedly drafted by M/s CAM and therefore in our considered view, the instant claim of Rs.19,94,244/- which is under consideration before us, requires to be verified by relevant documents and substantiation by the Assessee. Thus, we are inclined to remand the instant issue as well to file of the ld. Commissioner for decision afresh, suffice to say by affording a reasonable opportunity of being heard. The Assessee is also directed to file the relevant documents and communications in support of it claim qua fees paid to M/s CAM. We clarify that in case of failure to produce the relevant documents, the Assessee shall not be entitled for any leniency.

Thus, the issue under consideration is also remanded to the file of the ld. Commissioner for decision afresh, in the aforesaid terms and for the statistical purposes.

We further observe that the Assessee before us also raised the fresh additional ground challenging the notice dated 29.06.2021 under section 143(2) on the ground that in the notice it has not specified “whether the scrutiny was ‘limited or complete’ and therefore the Assessing Officer has failed to follow the instruction given by CBDT vide circular no. 20/2014 dated 29.12.2015, which mandates that in the cases selected through CASS, it must be clearly indicated “whether the case has been selected for ‘limited scrutiny’ or ‘complete scrutiny’ “ and therefore the notice issued under section 143(2) is liable to be quashed, which would entail the assessment order being void ab initio.

As the Assessee has raised the legal issue, which does not require examination of any independent facts and documents except already on record. Thus, by respectfully the judgement of Hon’ble Apex Court in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC), the fresh additional ground though refuted by the ld. DR, is allowed to be raised.

As we have remanded the issues involved in this case to the file of the ld. Commissioner for decision afresh on merits, and even otherwise the Assessee also failed to bring on the record the notice u/s 143(2) of the Act which is the foundation of legal challenge, thus in our considered view, it would be appropriate to afford an opportunity to the Assessee to raise the instant ground before the ld. Commissioner.

Thus, the Assessee would be at liberty to raise the instant ground before the ld. Commissioner. We order accordingly.

In the result, the Assessee’s appeal is allowed for statistical purposes in the aforesaid terms. Order pronounced in the open court on 12.11.2025 Sd/- Sd/- (WASEEM AHMED) (NARENDER KUMAR CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER * Prabhat, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, BANGALORE The DR Concerned Bench //True Copy// By Order