Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, D BENCH, KOLKATA
Before: Shri Duvvuru RL Reddy, Vice-(KZ) & Shri Rajesh Kumar
Per Duvvuru RL Reddy, Vice-President (KZ):- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 10th July, 2024 passed for assessment year 2017-18.
(A.Y. 2017-2018) Sreeleathers Limited 2. The facts in brief are that the assessee is a Company, which filed its return of income electronically on 30.10.2017 declaring total income of Rs.20,85,66,570/-. The case was selected for limited scrutiny (CASS) assessment as per existing norms. Accordingly notices under section 143(2) of the Income Tax Act, 1961 was issued and served through the departmental ITBA portal on 16.08.2018. Notices under section 142(1) of the Act and letters were issued to the assessee company for submission of documents through departmental ITBA portal. From the record, it is seen that the assessee had not suo moto disallowed any sum under section 14A in its computation of total income. However, the assessee is engaged in activities of investment, income from which is exempt in nature. The resources of assessee company are expended for carrying on such investing activities, either directly or indirectly. The assessee submitted that no exempt income was earned during the financial year 2016-17 and the same no expenses relating to the exempt income is charged to profit & loss account. It further submitted that the investments are made in debt mutual fund which does not attract 14A. The assessee failed to appreciate that the expenditure incurred on such activities are not dependent on the amount of exempt income received. There is difference in income from sale of debt mutual fund and income from debt mutual fund. Ld. Assessing Officer determined the disallowance under section 14A of the Act at Rs.47,43,027/- read with Rule 8D and added back to the total income of the assessee. Finally, ld. Assessing Officer assessed the total income of the assessee under section 143(3) of the Income Tax Act at Rs.21,33,09,597/-. On (A.Y. 2017-2018) Sreeleathers Limited being aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals).
The ld. CIT(Appeals) dismissed the appeal of the assessee by relying on various Hon’ble High Court decisions as well as Hon’ble Supreme Court judgment saying that the Central Board of Direct Taxes, in exercise of its powers under section 119 of the Act clarifies that Rule 8D read with section 14A of the Act provides for disallowance of the expenditure even where taxpayer in a particular year has not earned any exempt income. The ld. CIT(Appeals) also mentioned that the Board clarified that the usage of term ‘includible’ in the heading to section 14A of the Act and also heading to Rule 8D indicate that it is not necessary that exempt income should necessarily be included in a particular year’s income, for disallowance to be triggered and section 14A does not use the word ‘income of the year’ but ‘income under the Act’, therefore, for invoking disallowance under section 14A is not material that assessee should have earned such exempt income during the financial year under consideration.
4. On being aggrieved, the assessee preferred appeal before the ITAT. At the outset, it was the submission of the ld. Counsel for the assessee that for the relevant assessment year, there is no dividend income and further submitted that no exempt income was earned during the financial year 2016-17 and no expenses relating to the exempt income is charged to profit & loss account. It further submitted that the investments are made in debt mutual fund which does not attract 14A. The assessee failed to appreciate that (A.Y. 2017-2018) Sreeleathers Limited the expenditure incurred on such activities are not dependent on the amount of exempt income received. There is difference in income from sale of debt mutual fund and income from debt mutual fund Income from sale of debt mutual fund may be taxable under the head capital gain but only specific expenditures are allowable in computation of capital gain and not all overhead expenses/common expenses are allowable in the said head. He further pleaded that income from investment (even debt mutual fund) is exempt in nature and where there is no exempt income earned, there cannot be any disallowance under section 14A. The ld. Counsel heavily relied on the judgments of the Hon’ble Calcutta High Court in the case of CIT -vs.- Ashika Global Securities Ltd. (ITAT 100 of 2014, GA 2122 of 2014) and in the case of Pr. CIT - vs.- Shalimar Pelleet Feeds Ltd. (2022) 138 taxmann.com 124/287 taxman 134. Ld. counsel also relied on the judgment of the Hon’ble Calcutta High Court in the case of Pr. CIT (Central) vs.- Avantha Realty Ltd. reported n (2024) 164 taxmann.com 376 (Calcutta). He, therefore, pleaded to set aside the order passed by the ld. CIT(Appeals).
5. On the other hand, ld. Departmental Representative pleaded to uphold the order passed by the ld. CIT(Appeals).
6. We have duly considered the rival contentions and gone through the record carefully. The ld. CIT(Appeals) has deleted the disallowance by observing that there is no exempt income in this year. This aspect is squarely covered by the decision of the Hon’ble Delhi High Court, wherein it has been held that if no exempt (A.Y. 2017-2018) Sreeleathers Limited income is being earned by the assessee, then, no disallowance is to be made. We take note of the decision of the Hon’ble Delhi High Court in the case of Pr. CIT -vs.- M/s. Era Infrastructure (India) Ltd. in ITA 204/2022 & AM APPL. 31445/2022. The discussion made by the Hon’ble High Court reads as under:- “3. He submits that the ITAT erred in relying on the decision of this Court in PCIT vs. IL & FS Energy Development Company Ltd., 2017 SCC Online Del 9893 (wherein it has been held that no disallowance under Section 14A of the Act can be made if the assessee had not earned any exempt income), as the revenue has not been accepted the said decision and has preferred an SLP against the said decision.
Learned counsel for the petitioner also submits that in view of the amendment made by the Finance Act, 2022 to Section 14A of the Act by inserting a non obstante clause and an explanation after the proviso, a change in law has been brought about and consequently, the judgments relied upon by the authorities below including PCIT vs. IL & FS Energy Development Company Ltd (supra) are no longer good law. The amendment to Section 14A of the Act is reproduced hereinbelow:-
“Amendment of section 14A. In section 14A of the Income-tax Act, - (a) in sub-section (1), for the words “For the purposes of”, the words “Notwithstanding anything to the contrary contained in this Act, for the purposes of” shall be substituted;
(b) after the proviso, the following Explanation shall be inserted, namely:-
“[Explanation.—For the removal of doubts, it is hereby clarified that notwithstanding anything to the contrary contained in this Act, the provisions of this section shall apply and shall be deemed to have always applied in a case where the income, not forming part of the total income under this Act, has not accrued or arisen or has not been received during the previous year relevant to an assessment year and the expenditure has been incurred during the said previous year in relation to such income not forming part of the total income]”. 5 (A.Y. 2017-2018) Sreeleathers Limited
However a perusal of the Memorandum of the Finance Bill, 2022 reveals that it explicitly stipulates that the amendment made to Section 14A will take effect from 1st April, 2022 and will apply in relation to the assessment year 2022-23 and subsequent assessment years. The relevant extract of Clauses 4, 5, 6 & 7 of the Memorandum of Finance Bill, 2022 are reproduced hereinbelow:
“4. In order to make the intention of the legislation clear and to make it free from any misinterpretation, it is proposed to insert an Explanation to section 14A of the Act to clarify that notwithstanding anything to the contrary contained in this Act, the provisions of this section shall apply and shall be deemed to have always applied in a case where exempt income has not accrued or arisen or has not been received during the previous year relevant to an assessment year and the expenditure has been incurred during the said previous year in relation to such exempt income.
5. This amendment will take effect from 1st April, 2022.
It is also proposed to amend sub-section (1) of the said section, so as to include a non-obstante clause in respect of other provisions of the Income-tax Act and provide that no deduction shall be allowed in relation to exempt income, notwithstanding anything to the contrary contained in this Act.
7. This amendment will take effect from 1st April, 2022 and will accordingly apply in relation to the assessment year 2022-23 and subsequent assessment years.” (emphasis supplied) 6. Furthermore, the Supreme Court in Sedco Forex International Drill. Inc. v. CIT, (2005) 12 SCC 717 has held that a retrospective provision in a tax act which is “for the 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. The relevant extract of the said judgment is reproduced herein below: “9. The High Court did not refer to the 1999 Explanation in upholding the inclusion of salary for the field break periods in the assessable income of the employees of the appellant. However, the respondents have urged the point before us.
(A.Y. 2017-2018) Sreeleathers Limited 10. In our view the 1999 Explanation could not apply to assessment years for the simple reason that it had not come into effect then. Prior to introducing the 1999 Explanation, the decision in CIT v. S.G. Pgnatale [(1980) 124 ITR 391 (Guj)] was followed in 1989 by a Division Bench of the Gauhati High Court in CIT v. Goslino Mario [(2000) 241 ITR 314 (Gau)] . It found that the 1983 Explanation had been given effect from 1-4-1979 whereas the year in question in that case was 1976-77 and said: (ITR p. 318) “[It is settled law that assessment has to be made with reference to the law which is in existence at the relevant time. The mere fact that the assessments in question has (sic) somehow remained pending on 1-4-1979, cannot be cogent reason to make the Explanation applicable to the cases of the present assessees. This fortuitous circumstance cannot take away the vested rights of the assessees at hand.”
The reasoning of the Gauhati High Court was expressly affirmed by this Court in CIT v. Goslino Mario [(2000) 10 SCC 165 (2000) 241 ITR 312] . These decisions are thus authorities for the proposition that the 1983 Explanation expressly introduced with effect from a particular date would not effect the earlier assessment years.
In this state of the law, on 27-2-1999 the Finance Bill, 1999 substituted the Explanation to Section 9(1)(ii) (or what has been referred to by us as the 1999 Explanation). Section 5 of the Bill expressly stated that with effect from 1-4-2000, the substituted Explanation would read:
Explanation.—For the removal of doubts, it is hereby declared that the income of the nature referred to in this clause payable for— (a) service rendered in India; and (b) the rest period or leave period which is preceded and succeeded by services rendered in India and forms part of the service contract of employment, shall be regarded as income earned in India.
The Finance Act, 1999 which followed the Bill incorporated the substituted Explanation to Section 9(1)(ii) without any change.
The Explanation as introduced in 1983 was construed by the Kerala High Court in CIT v. S.R. Patton [(1992) 193 7 (A.Y. 2017-2018) Sreeleathers Limited ITR 49 (Ker)] while following the Gujarat High Court's decision in S.G. Pgnatale [(1980) 124 ITR 391 (Guj)] to hold that the Explanation was not declaratory but widened the scope of Section 9(1)(ii). It was further held that even if it were assumed to be clarificatory or that it removed whatever ambiguity there was in Section 9(1)(ii) of the Act, it did not operate in respect of periods which were prior to 1-4-1979. It was held that since the Explanation came into force from 1-4-1979, it could not be relied on for any purpose for an anterior period.
In the appeal preferred from the decision by the Revenue before this Court, the Revenue did not question this reading of the Explanation by the Kerala High Court, but restricted itself to a question of fact viz. whether the Tribunal had correctly found that the salary of the assessee was paid by a foreign company. This Court dismissed the appeal holding that it was a question of fact. (CIT v. S.R. Patton [(1998) 8 SCC 608].
Given this legislative history of Section 9(1)(ii), we can only assume that it was deliberately introduced with effect from 1-4- 2000 and therefore intended to apply prospectively [See CIT v. Patel Bros. & Co. Ltd., (1995) 4 SCC 485, 494 (para 18) : (1995) 215 ITR 165] . It was also understood as such by CBDT which issued Circular No. 779 dated 14-9-1999 containing Explanatory Notes on the provisions of the Finance Act, 1999 insofar as it related to direct taxes. It said in paras 5.2 and 5.3. “5.2 The Act has expanded the existing Explanation which states that salary paid for services rendered in India shall be regarded as income earned in India, so as to specifically provide that any salary payable for the rest period or leave period which is both preceded and succeeded by service in India and forms part of the service contract of employment will also be regarded as income earned in India.
5.3 This amendment will take effect from 1-4-2000, and will accordingly, apply in relation to Assessment Year 2000-2001 and subsequent years.” 16. The departmental understanding of the effect of the 1999 Amendment even if it were assumed not to bind the (A.Y. 2017-2018) Sreeleathers Limited respondents under Section 119 of the Act, nevertheless affords a reasonable construction of it, and there is no reason why we should not adopt it.
17. As was affirmed by this Court in Goslino Mario [(2000) 10 SCC 165 : (2000) 241 ITR 312] a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT [(1980) 1 SCC 139 : 1980 SCC (Tax) 67] .) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section [See Sonia Bhatia v. State of U.P., (1981) 2 SCC 585, 598 : AIR 1981 SC 1274, 1282 para 24] . If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force [See Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24 (para 44); Brij Mohan Das Laxman Das v. CIT, (1997) 1 SCC 352, 354; CIT v. Podar Cement (P) Ltd., (1997) 5 SCC 482, 506] . But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are “it is declared” or “for the removal of doubts”.” (emphasis supplied)
The aforesaid proposition of law has been reiterated by the Supreme Court in M.M Aqua Technologies Ltd. V. Commissioner of Income Tax, Delhi-III, 2021 SCC OnLine SC 575. The relevant portion of the said judgment is reproduced hereinbelow:- “22. Second, a retrospective provision in a tax act which is “for the 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. This was stated in Sedco Forex International Drill. Inc. v. CIT, (2005) 12 SCC 717 as follows:
As was affirmed by this Court in Goslino Mario [(2000) 10 SCC 165] a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT [(1980) 1 SCC 139].) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen (A.Y. 2017-2018) Sreeleathers Limited the scope of the main section [See Sonia Bhatia v. State of U.P., (1981) 2 SCC 585]. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force [See Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24; Brij Mohan Das Laxman Das v. CIT, (1997) 1 SCC 352; CIT v. Podar Cement (P) Ltd., (1997) 5 SCC 482]. But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are “it is declared” or “for the removal of doubts”.
There was and is no ambiguity in the main provision of Section 9(1)(ii). It includes salaries in the total income of an assessee if the assessee has earned it in India. The word “earned” had been judicially defined in S.G. Pgnatale [(1980) 124 ITR 391 (Guj)] by the High Court of Gujarat, in our view, correctly, to mean as income “arising or accruing in India”. The amendment to the section by way of an Explanation in 1983 effected a change in the scope of that judicial definition so as to include with effect from 1979, “income payable for service rendered in India”.
When the Explanation seeks to give an artificial meaning to “earned in India” and brings about a change effectively in the existing law and in addition is stated to come into force with effect from a future date, there is no principle of interpretation which would justify reading the Explanation as operating retrospectively.” (emphasis supplied) 8. Consequently, this Court is of the view that the 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.
Though the judgment of this Court has been challenged and is pending adjudication before the Supreme Court, yet there is no stay of the said judgment till date. Consequently, in view of the judgments passed by the Supreme Court in Kunhayammed and Others vs. State of Kerala and Another, (2000) 6 SCC 359 and Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, the present appeal is dismissed being covered by the judgment 10 (A.Y. 2017-2018) Sreeleathers Limited passed by the learned predecessor Division Bench in PCIT vs. IL & FS Energy Development Company Ltd (supra) and Cheminvest Limited vs. Commissioner of Income Tax-VI, (2015) 378 ITR 33.
Accordingly, the appeal and application are dismissed. However, it is clarified that the order passed in the present appeal shall abide by the final decision of the Supreme Court in the SLP filed in the case of PCIT vs. IL & FS Energy Development Company Ltd (supra).
MANMOHAN, J MANMEET PRITAM SINGH ARORA, JULY 20, 2022”
7. By considering the totality of the facts and circumstances of the case, we find that the issue on account of disallowance under section 14A of Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules 1962 is squarely covered by the decision of the Hon’ble Delhi High Court in the case of Pr. CIT -vs.- M/s. Era Infrastructure (India) Ltd. in ITA 204/2022 & AM APPL. 31445/2022. Therefore, we, respectfully following the judgment of the Hon’ble Delhi High Court, are of the view that this issue is set aside to the file of ld. Assessing Officer and in case it revealed that there is no tax-free income to the assessee in this year, in other words if the assessee has not claimed any exempt income, then no disallowance under section 14A read with Rule 8D be made in the case of the assessee.