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Facts
The assessee claimed deduction for ESOP expenses during reassessment proceedings, which was not made in original returns or during original assessment or appellate proceedings. This claim was also not related to the escaped income. The Revenue authorities disallowed the claim, and the CIT(A) confirmed the disallowance.
Held
The Tribunal held that a fresh claim for deduction, especially for ESOP expenses, cannot be made for the first time during reassessment proceedings if it was not raised in the original return, assessment, or appellate stages, and is not related to the escaped income. The appeal related to reassessment was dismissed.
Key Issues
Whether a fresh claim for deduction of ESOP expenses can be made during reassessment proceedings when it was not raised earlier and is unrelated to the escaped income?
Sections Cited
147, 148, 143(3), 36(1)(viii), 14A, Rule 8D, 37(1), 154
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Income Tax Appellate Tribunal, “ A ” BENCH, AHMEDABAD
Before: Shri Sanjay Garg & Smt. Annapurna Gupta
Per Sanjay Garg, Judicial Member:
The captioned appeals have been preferred by the assessee as well as by the Revenue against the separate orders of the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘CIT(A)’] pertaining to different Assessment Years (AYs). Since common facts and issues are involved in all these appeals, hence, these were heard together and are being disposed of by this consolidated order. First, we take up assessee’s appeal in AY 2011-12.
2. The sole issue raised in this appeal is as to whether a fresh claim of deduction can be made by an assessee during the proceedings relating to re- opening of the assessment u/s.147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for the first time, when the same was not made neither in the original return of income nor during the assessment proceedings carried out u/s.143(3) of the Act and not even in appellate proceedings.
The brief facts of the case are that the assessee had filed its return of income for A.Y. 2011-12 on 27.09.2011 declaring total income of Rs.101,33,86,210/-. The scrutiny assessment u/s. 143(3) of the Act was finalized on 24.02.2014 and total income was assessed at Rs. 105,29,30,940/-. Being aggrieved, the assessee filed appeal before the Ld. CIT(A) and subsequently before ITAT. The ITAT vide its Order dated 30.09.2016 provided part relief to the assessee. Appeal effect of the same has already been given vide Order dated 18.06.2018 of the A.O., by which Net total income of the assessee for the A.Y. 2011-12 has been decided at Rs.104,36,71,566/-. Thereafter, the Assessing Officer (AO) received information that during the year under consideration, the assessee has received hefty share premium, which was over and above the nominal value. The AO, therefore, was of the view that the said share premium was not 3 genuine. He was of the view that the income of the assessee on account of the aforesaid share premium had escaped assessment. He, accordingly, re- opened the assessment u/s.147 r.w.s.148 of the Act. However, the assessee during the reassessment proceedings carried out u/s.147 of the Act, made a new claim of deduction on account of Employees’ Stock Option Plan (ESOP) cost of Rs.4,45,28,585/-. The AO, however, observed that the new claim of deduction of expenses on account of ESOP cost was not maintainable in the re-opened assessment proceedings u/s.147 of the Act. He observed that the assessee never claimed the aforesaid ESOP cost expenses in the books of accounts nor in the original return of income nor during the original assessment proceedings carried out u/s.143(3) of the Act and even not in the appellate proceedings before the CIT(A) and the Tribunal. That, the assessee for the first time made the said new claim during the assessment proceedings carried out u/s.147 of the Act. The Ld.AO observed that such a new claim during the assessment proceedings carried out u/s.147 of the Act was not maintainable. He, in this respect, relied upon the following case-laws:
CIT Vs. Sun Engineering Works P.Limited (SC) 198 ITR 297 Chettinad Corporation P.Ltd. Vs. CIT (SC) 200 ITR 320 V. Jaganmohan Rao & Ors. Vs. CIT (SC) 75 ITR 373 3.1. The Ld.AO also observed that the aforesaid claim of deduction on account of ESOP cost expense was even not related to the escaped income. He, therefore, disallowed the aforesaid claim made by the assessee. The Ld.CIT(A) confirmed the disallowance of aforesaid deduction claimed by the assessee during the re-assessment proceedings u/s.147 of the Act.
Being aggrieved by the said order of the Ld.CIT(A), the assessee has come in appeal before us.
We have heard the rival contentions and gone through the record. Admittedly, the assessee has made the claim of ESOP expenses for the first time during the re-assessment proceedings u/s.147 of the Act. The said claim of the assessee was not related or connected to the issue of escaped income in relation to which the assessment was re-opened. In our view, such a fresh claim of the assessee is not admissible in the reopened assessment proceedings, since the original assessment proceedings have already been settled upto the level of the Tribunal. Even the matter travelled to the Hon’ble High Court but no such claim was made even in the appellate proceedings in relation to the original assessment proceedings carried out u/s.143(3) of the Act. The issue is squarely covered against the assessee by various decision of the Higher Court. Reliance in this respect can be placed of Hon’ble Supreme Court in the cases of CIT vs. Sun Engineering Works (P.) Ltd. (1992) 64 Taxman 442 (SC); CIT vs. Caixa Economica De Goa 210 ITR 719 (Bom); K. Sudhakar S. Shanbhag vs. ITO 241 ITR 865 (Bom) and CIT vs. Keshoram Industries Ltd. 144 Taxman 1 (Calcutta). It is to be noted that the Reliance of the Ld.Counsel on the decision of the Hon’ble Bombay High Court in the case of CIT vs. Caixa Economica De Goa (supra) is misconceived as in the said case, the assessment was re-opened on the ground that subsidy received by the assessee was assessee’s income, which had escaped assessment during the original assessment proceedings. The Hon’ble Bombay High Court held that in the re-assessment proceedings, the assessee was entitled to claim the expenditure relatable so such escaped subsidy income. The Hon’ble Bombay High Court observed that in the re-assessment proceedings, the assessee cannot re-agitate the claim that was already made during the original assessment proceedings, however, it was open to assessee to put forward claim for deduction for any expenditure which was relatable to the income which was sought to be assessed as escaped income in the reassessment proceedings. However, it is settled proposition of law that when no such claim relating to ESOP cost was made in the original return of income and nor during original assessment proceedings u/s.143(3) of the Act, the matter had travelled upto the High Court and even no such claim was made relating to ESOP expenses even at any stage of the appellate proceedings, it was not open to the assessee to make a fresh claim for the first time during the re- assessment proceedings u/s.147 of the Act. The Hon’ble Supreme Court in the case of CIT vs. Sun Engineering Works (P.) Ltd. reported in [1992] 64 Taxman 442 (SC) has held that the object and purpose of the proceedings u/s.147 of the Act are for the benefit of the revenue and not an assessee, and that an assessee cannot be permitted to convert the reassessment proceedings as its appeal or revision in disguise, and seek relief in respect of items earlier rejected or claim relief in respect of items not claimed in the original assessment proceedings, unless relatable to escaped income and re-agitate the concluded matters. The various higher courts have subsequently followed the above proposition of law.
In view of this, there is no merit in the appeal of the assessee for the year under consideration and is hereby dismissed. for AY 2012-13: 7. The assessee, in this appeal, in the original grounds of appeal, has agitated against the confirmation of disallowance u/s.14A r.w. Rule 8D made by the Assessing Officer to the extent of Rs.2,25,35,088/-. We note that the Ld.CIT(A) has restricted the disallowance to the extent of exempt income earned by the assessee. The Ld.CIT(A) while holding so, has relied upon the decision of the Tribunal in own case of the assessee for AY 2008-09 passed in ITA No.1880/Ahd/2015. The issue is otherwise settled by various High Courts, wherein it has been held that the disallowance u/s.14A cannot be exceed the exempt income earned by the assessee. Even the Ld.Counsel for the assessee has not advanced any arguments on this issue. This ground of assessee’s appeal is, therefore, dismissed.
The assessee has also raised an additional ground of appeal, where by, for the first time, during the appellate proceedings before the Tribunal, the assessee has claimed deduction on account cost of ESOP borne by the assessee on the issue of shares to the employees at the rate lower than the fair market value amounting to Rs.3,24,89,420/-. Admittedly, the issue on merits is squarely covered in favour of the assessee by the decision of the Hon’ble Karnataka High Court in the case of Commissioner of Income Tax, LTU v. Biocon Ltd. [2020] 121 taxmann.com 351 (Karnataka) and further by the decision of Hon’ble Madras High Court in the case of Commissioner of Income tax vs. Shriram City Union Fiannce Ltd. [2024] 161 taxmann.com 218 (Madras). The Co-ordinate Bench of Kolkata Tribunal, in the case of M/s.Bandhan Bank Limited vs. DCIT, in dated 26/08/2024, has decided the aforesaid issue of claim of deduction on account of ESOP cost in favour of the assessee. Further, the issue is also squarely covered in favour of assessee by the decision of Coordinate Bench of Kolkata Tribunal, in the case of DCIT vs. Bandhan Bank Ltd., in vide order dated 27/03/2023, wherein the Coordinate Bench has taken the view that the ESOP expenses are the allowable deduction u/s.37(1) of the Act. The said decision of the Tribunal has been further affirmed by the Hon’ble Calcutta High Court in ITAT/296/2023 - IA No:GA/1/2023, GA/2/2023, in the case of Principal Commissioner of Income Tax 2, Kolkata vs. Bandhan Bank Ltd.,dated 07/02/2024.
9. Now, coming to the issue as to whether a fresh claim can be made during the appellate stage, the issue is squarely covered by various decisions of the Higher Courts, wherein it has been held that the assessee can take an additional ground at appellate stage even when the same has not been raised before the lower authorities. Reliance in this respect can be placed on the decision n of the Hon'ble Supreme Court in the case of "National Thermal Power Company Ltd. vs. CIT" 229 ITR 383, Full Bench of the Hon'ble High Court in the case of "Ahmedabad Electricity Co. Ltd. vs. CIT" (1993) 199 ITR 351, another decision of the Hon'ble Bombay High Court in the case of "CIT vs. "CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd." (2012) 349 ITR 336 (Bom.) wherein the Hon'ble courts have been unanimous to hold that the appellate authorities have jurisdiction to deal not merely with additional ground which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The full Bench of the Hon'ble Bombay High Court in the cases of "Ahmedabad Electricity Company Ltd. vs. CIT" and "Godavari Sugar Mills Ltd. vs. CIT" by way of a common order dated 30.04.1992 (1993) 199 ITR 351 has observed that the basic purpose of an appeal procedure in an income tax matter is to ascertain the correct tax liability of the assessee in accordance with law. Therefore, at both the stages, either by the Appellate Assistant Commissioner or before the Appellate Tribunal, the appellate authority can consider the proceedings before it and the material on record before it for the purpose of determining the correct tax liability of the assessee.
The Ld.DR Could not controvert the aforesaid legal position.
We note that the claim by the assessee is based on the facts which are already on the file and no new facts have to be investigated. In view of this, this ground of appeal is allowed and the Assessing Officer is directed to allow the claim of deduction to the assessee on account of ESOP cost/expenses.
12. This appeal of the assessee is partly allowed. for AY 2012-13 : 13. The grounds raised by the Revenue in this appeal, read as under:
1. The Ld.CIT(A) has erred in law and on facts in deleting the excess claim of deduction u/s.36(1) (viii) amounting to Rs.35,33,371/- without properly appreciating the facts of the case and the material brought on record.
The Ld.CIT(A) has erred in law and on facts in restricting the disallowance u/s.14A of the Act to Rs.2,25,35,088/- as against Rs.2,41,27,024/- made by the AO without properly appreciating the facts of the case and the material brought on record.
3. The Ld.CIT(A) has erred in law and on facts in allowing the Long Term Capital Loss of Rs.22,06,890/- and Short Term Capital loss of Rs. 19,17,907/- as business loss without properly appreciating the facts of the case and the material brought on record.
4. On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the Assessing Officer.
5. It is, therefore, prayed that the order of the Ld. CIT(A) may be set aside and that of the Assessing Officer may be restored to the above extent.
9 6. The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary.”
Ground No.1:- The Revenue vide Ground No.1 has agitated the action of CIT(A) in allowing excess claim of deduction u/s.36(1)(viii) of the Act, amounting to Rs.35,33,371/-.
The Assessing Officer had made the impugned disallowance holding that out of the total deduction claimed u/s.36(1)(viii), the amount recoverd as bad debts was cannot be held as income derived from the eligible business of Long Term Housing Finance. The Ld.CIT(A) relied upon the decision of the Tribunal in own case of assessee for AYs 2005-06 to 2009-10 in dated 17/08/2006, has granted deduction u/s.36(1)(viii) of the Act holding the recovery of bad debts as derived from the eligible business of the assessee.
The Ld.DR could not show any distinguishing case-laws. In view of this, there is no merit in this ground of Revenue and the same is, accordingly, dismissed.
Ground No.2:- The Revenue vide Ground No.2 has agitated the action of the Ld.CIT(A) in restricting the disallowance u/s.14A of the Act to Rs.2,25,35,088/- as against Rs.2,41,27,024/- made by the Assessing Officer.
17.1. We note that the Ld.CIT(A) has restricted the disallowance u/s.14A of the Act to the extent of exempt income earned by the assessee. The issue is squarely covered the decisions of various of the Higher Courts including in the own case of the assessee for AY 2008-09 to 2011-12 passed in ITA 1880/Ahd/2015 & Others vide order dated 30/09/2016. Reliance, in this respect, can also be placed on the decision of Hon’ble Delhi High Court in the case of Cheminvest Ltd. vs. CIT reported at 378 ITR 33 (Delhi) and also in the case of Joint investments Pvt.Ltd. reported at 116 DTR 289, wherein, it has been held time and again that the disallowance u/s.14A of the Act cannot exceed the tax exempt income earned by the assessee. There is no merit in this ground of appeal of the Revenue and the same is, accordingly, dismissed.
18. Ground No.3:- The Revenue vide Ground No.3 has agitated against the action of the Ld.CIT(A) in setting of the Long Term Capital Loss of Rs.22,06,890/-and Short Term Capital loss of Rs.19,17,907/- against business loss.
18.1. The only plea raised by the Ld.DR was that the Ld.CIT(A) has allowed the aforesaid claim by himself appreciating the facts and the documents and evidences on the file which were brought before the Ld.CIT(A). The Ld.DR, in this respect has submitted that the Ld.CIT(A) ought to have given an opportunity to the Assessing Officer to rebut the claim made by the assessee.
We have asked a specific question to the Ld.DR as to whether he can point out as to any defect or infirmity in the order of the Ld.CIT(A) so far as the allowability of the aforesaid claim on merits was concerned. The Ld.DR, however, has replied that though he has nothing to say in respect of allowability of the claim on merits, however, only plea of the Revenue is that the Assessing Officer should have been given an opportunity to rebut the aforesaid claim. We are not convinced with the aforesaid arguments of the Ld.DR. The Ld.CITA) is a Higher Officer and Appellate Authority over the Assessing Officer. It has been held, time and again, that the powers of the appellate Commissioner are co- terminous with that of the Assessing Officer. The Ld.Commissioner has examined the evidence before him and allowed the claim of the assessee. The Ld.DR could not point out any ambiguity or infirmity in the order of the Ld.CIT(A) regarding the merits of the allowability of claim of deduction in this respect, even before us. Remanding the matter to the AO for the sake of just procedural infirmity will not yield any purposeful result except the further prolonging and multiplicity of litigation. No useful purpose will be served in remanding the matter to the AO, when the Revenue has nothing to say otherwise, about the validity of allowability of the claim allowed by the Ld.CIT(A). ‘There is no merit in this ground of appeal of the Revenue and the same is, accordingly, dismissed.
20. Ground Nos.4 to 6 are general in nature which require no independent adjudication and, hence, the same are dismissed as such.
This appeal of the Revenue is hereby dismissed. for AY 2014-15:
The assessee in this appeal is aggrieved by the action of the CIT(A) in dismissing its application moved u/s.154 of the I.T. Act.
22.1. The assessee before the CIT(A) has pleaded that the notional interest of Rs.8,72,867/- was duly taxed in AY 2013-14 and, therefore, the same could not be taxed in AY 2014-15 as it will amount to double taxation. The Ld.CIT(A) held that the assessee has not furnished any supportive evidence that interest on NPA of Rs.10,41,525/- for AY 2014-15 includes interest of Rs.8,72,867/- for AY 2013-14 and further that the same has been offered for taxation in AY 2013-14. The Ld.CIT(A), therefore, did not find any merit in the application moved by the assessee u/s.154 of the Act and dismissed the same.
Before us, the Ld.Counsel has neither pressed this ground nor raised any arguments on this issue. This ground is, therefore, dismissed.
Apart from the aforesaid ground of appeal, the Ld.Counsel for the assessee has raised an additional ground for the first timeregarding claim of ESOP cost.
24.1. We note that this appeal is against the order passed u/s.154 of the Act which has a limited scope as the jurisdiction u/s.154 of the Act can be exercised only in respect of any mistake apparent from record. Therefore the claim regarding the claim of ESOP expenditure in an appeal against the order passed u/s.154 of the Act, in our humble view, is not maintainable. The jurisdiction u/s.154 of the Act is restricted to the plea relating to the mistake apparent on record and not relating to any other additional claim, which was either not allowed or not raised during the original assessment proceedings or any appellate proceedings relating to the original assessment proceedings. No new claim can be made on substantive basis in an appeal relating to the order passed u/s.154 of the Act. Therefore, there is no merit in the appeal of the assessee and the same is dismissed.
We summarize the result as under: (1)
Assessee’s appeal is dismissed. (2)
Assessee’s appeal is partly allowed. (3) Revenue’s appeal is dismissed. (4) ITA No.138/Ahd/2018, Assessee’s appeal is dismissed.
Order pronounced in the Open Court on 31/07/2025.