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Income Tax Appellate Tribunal, MUMBAI BENCH “J”, MUMBAI
Before: SHRI B R BASKARAN & SHRI AMIT SHUKLA
Per Amit Shukla, Judicial Member:
The aforesaid appeal has been filed by the assessee against the impugned order dated 26.11.2015, passed by Ld. CIT(Appeals)- 14, Mumbai for the quantum of assessment passed u/s. 143(3) of the Income Tax Act, 1961. In the grounds of appeal the assessee has raised the following grounds:- “GROUND I: INACCURATE COMPUTATION OF LONG TERM CAPITAL LOSS
1. On the facts and circumstances of the case and in law, the Ld.CIT(A) erred in upholding the action of the Income-tax Officer, Range 7(3)(2), Mumbai (“the AO”) in inaccurately computing the long-term capital loss on sale of rights shares acquired by way of amalgamation at Rs.1,94,47,166/-/
Topstar Mercantile Private Limited
He failed to appreciate and ought to have held that: (i) Cost of acquisition of shares acquired by way of amalgamation shall be computed as per the provisions of section 49(1)(e) of the Act and accordingly the cost of acquisition shall be the cost at which the previous owner acquired the rights shares; (ii) Cost Inflation Index shall be the inflation index corresponding to the year in which the previous owner, acquired the rights shares i.e. F.Y. 2006-07.
3. The Appellant, therefore, prays that the long-term capital loss of Rs.5,36,19,339/- as claimed by the Appellant in its Return of Income be allowed. GROUND II: DISALLOWANCE UNDER SECTION 14A OF THE ACT READ WITH RULE 8D OF THE INCOME – TAX RULES, 1962 (‘THE RULES’) 1. On the facts and circumstances of the case and in law, the Ld.CIT(A) erred in upholding the action of the AO in disallowing the expenditure amounting to Rs.2,86,616/- u/s. 14A of the Act r.w.r. 8D of the Rules, without appreciating that the expenses disallowed have no direct nexus with the earning of exempt income. 2. The Appellant, therefore, prays that the disallowance of Rs.2,86,616/- be deleted i.e. the same be restricted to R.15,14,901/- as suo-moto disallowed by the Appellant.” 2. The brief facts, qua the issue raised vide ground no.1 & 2 are that, the assessee is an investment company and during the year under consideration, it had sold 47,23,432 shares of Morarjee Textiles Ltd.(MTL) at the value of Rs. 14 per share amounting to Rs.6,61,28,048/- and declared long term capital loss. The assessee sold these shares off market. The mode of acquisition of 23,61,716 shares was by way of amalgamation, which was explained by the assessee in the following manner to the AO:- “PEL Holding Pvt. Ltd. (PEL) was merged with Bigdeal Mercantile Pvt. Ltd. (“Bigdeal”) w.e.f. October 1, 2007 vide Bombay High Court order
Topstar Mercantile Private Limited dated November 23, 2007. Thereafter, Bigdeal was merged with the Appellant w.e.f. January 1, 2009 vide Bombay High Court order dated December 12, 2008. Prior to the amalgamation of PEL with Bigdeal, PEL held 13,49,552 shares of MTL prior to November 3, 2006 (here after referred to as the original Shares). The same can be seen from the shareholding pattern of PEL for the quarter ended September 2006 as extracted from the website of Bombay Stock Exchange (BSE). Thereafter on November 3, 2006, PEL was further allotted 10,12,164 shares at Rs.55 per share by MTL in lieu of the rights issue in the ratio of 3:4. As a consequence, PEL was holding in aggregate 23,61,716 shares (13,49,552 original shares + 10,12,164 right shares) as on December 31, 2006. The same can be seen from the shareholding pattern of PEL for the quarter ended December 2006 as extracted from the website of BSE. The said shares were transferred to Bigdeal in lieu of scheme of amalgamation of PEL with Bigdeal w.e.f. October 1, 2007. Thereafter, w.e.f. January 1, 2009 the said 23,61,716 shares stood transferred to the assessee in lieu of the scheme of amalgamation of Bigdeal with the assessee.”
All these shares were sold by the assessee on 10.12.2009. On sale of original shares, assessee earned Long term capital gain. However, the AO after considering the entire background of the case, history of amalgamation, acquisition of shares, held that the Long term capital gain would be Rs.3,83,40,894/-, as against Long term capital loss claimed by the assessee on right shares of MTL. Later on, there was certain mistakes in the order of the AO and Long term capital gain was revised to Rs.1,94,47,166 as against Long term capital loss of Rs.5,36,339/- claimed by the assessee.
Before the Ld. CIT(A), the assessee’s main contention was that on a plain reading of section 49(1) read with explanation, the cost of acquisition of shares received by way of amalgamation is to be on the basis cost of acquisition as held by the previous owner, i.e. PEL Holding Private Limited. It was submitted that the cost of acquisition of part of the right shares aggregating to 10,12,164 shares of MTL
Topstar Mercantile Private Limited would be Rs.5,56,69,020/-, because this was the cost at which PEL was allotted shares on 3.11.2006. The AO has incorrectly taken the cost of acquisition at a cost at which the shares were reflected in the financial statements of the assessee immediately preceding the decision of transfer of Rs.2,93,08,895/-. It was submitted that the value given in the books should not be considered, because the treatment given in the books is not decisive. What is material is the cost of acquisition of the previous owner i.e. PEL. However, the learned CIT (A) after considering the assessee’s submission and noting down the mode of acquisition by the assessee, confirmed the action of the AO.
We have heard both the parties and also perused the finding given in the impugned orders as well as the material placed on record. Here the sole issue involved is, on the part of shares which were sold by the assessee in this year, what would be the cost of acquisition. Out of the total sale of 47,23,432 shares of MTL the dispute qua the cost of acquisition is with respect to 10,12,164 shares, which was received by way of amalgamation to the previous owner, i.e., PEL Holding Private Limited. The mode of acquisition and the history of amalgamation have already been incorporated above in assessee’s submission. However, for the sale of ready reference following chronology of event would be relevant to understand the mode of acquisition of the shares:-
Sr.No Events No. Of shares Date 1 PEL held shares of MTL 13,49,552 Prior to November 03, 2006 2 Allotment of rights shares to PEL 10,12,164 November 03, by MTL in the ratio of 3:4 2006 3 Transfer of shares to Bigdeal in 23,61,716 October 01, lieu of amalgamation of PEL with (13,49,552 + 2007 Bigdeal w.e.f. October 01, 2007 10,12,164)
Topstar Mercantile Private Limited
4 Transfer of shares to the 23,61,716 January 01, Appellant in lieu of amalgamation 2009 of Bigdeal with Appellant w.e.f January 01, 2009 5 Allotment of shares by MTL to the 23,61,716 October 12, Appellant pursuant to rights 2009 issue in the ratio of 1:1 at Rs.15/- per share 6 Sale of shares by the Appellant. 47,23,432 December 10, 2009 Further following chart /computation of Long term capital gain/ loss as per AO and as per assessee is reproduced below for sake of clarity.
Particulars Mode of Acquisition Allotted to the By way of By way of Amalgamation Appellant by MTL in Amalgamation (Rights Shares offered by MTL lieu of rights issue (Original shares to PEL) acquired by PEL No. of shares 23,61,716 13,49,552 10,12,164 acquired Cost of 3,54,25,740 NIL 5,56,69,020 Acquisition (Rs.15/- per share) (Rs.55 per share) Date of sale December 10, 2009 December 10, 2009 December 10, 2009 Computation of As per As per As per As per As per As per AO capital gains Appellant AO Appellant AO Appellant Date of October 12, 2009 Prior to November 03, November 03, October 1, acquisition 2009 2006 2007 Cost of 5,56,69,020 2,93,08,895 acquisition(a) Not disputed by the AO Year of 2006-07 2007-08 acquisition Year of sale 2009-10 2009-10 Cost inflation Index(b) Year of 519 551 Purchase (i) 632 632 Year of Sale (ii) Indexed cost of acquisition c = 6,77,89,635 3,36,17,462 (a) * b(ii)b(i) Sales consideration 1,41,70,296 1,41,70,296 @14 per share (d) Capital (5,36,19,339) (1,94,47,166) Gains/(loss) [(d) – (c)] [(d) – (c)] Nature of Long – term Long –term Capital Gains Capital Loss Capital Loss
Topstar Mercantile Private Limited The stand of the AO as well as the ld. CIT(A) are that, the cost of acquisition of 10,12,164 rights shares of MTL should be taken; firstly, from 1.10.2017, i.e., from the date of the transfer of shares to Bigdeal in lieu of amalgamation of PEL w.e.f. 1.10.2007 and not 3.11.2006 when these shares were allotted to PEL; and secondly, the rate per share as per assessee is to be taken at Rs.55/- which was the market value/cost at that time when the shares were acquired, whereas, the AO has taken cost which were reflected in the financial statements of the assessee immediately preceding the date of transfer at Rs. 2,93,08,895/-. Section 49(1) provides that the cost of acquisition of the asset shall be deemed the cost for which the previous owner of the property acquired it, as increased by the cost of any improvement of the assets incurred or borne by the previous owner or the assessee, as the case may be. The Explanation provides that the expression “previous owner of the property” in relation to any capital asset owned by an assessee means the last previous owner of the capital asset who acquired it by a mode of acquisition other than referred to in clause (i) to clause (iv) of subsection (1) of section 49. However, in this case, the shares were initially owned by PEL who was allotted these shares on 3.11.2006 and later on the shares were passed on to Bigdeal on account of amalgamation on 1.10.2007. Hence the last previous owner of the capital asset who acquired it by mode of acquisition is to be reckoned as PEL, therefore, for the purpose of determining the cost of acquisition in the hands of the assessee reference will have to be drawn to the cost at which the said shares were initially allotted to PEL in lieu of rights issue on 3.11.2006. Once PEL is previous owner of the capital asset then the cost of acquisition at the hands of the previous owner would be reckoned as the cost of acquisition in terms of section 49(1). Here the date of amalgamation of 1.10.2007 cannot be accepted to be the date of acquisition, because the Bigdeal had Topstar Mercantile Private Limited also acquired the right shares by one of the means as illustrated in section 49(1) and it can in no way be considered as ‘previous owner’ of the right shares. Hence, we hold that the period of holding should be taken from 3.11.2006, the date of allotment of right shares to PEL and the cost of such acquisition should be taken at the cost on which the previous owner had acquired the shares, i.e., Rs.55/- per share. Accordingly, the computation of capital loss as worked out by the assessee is liable to be admitted. The learned counsel for the assessee had strongly relied upon the decision of Hon’ble Bombay High Court in the case of CIT v. Manjula J Shah 255 ITR 474, wherein their Lordships reiterate the same proposition that cost of acquisition actually paid for an asset by previous owner shall be taken for the purpose of computation of capital gain for the purpose of section 48. Our conclusion also is based on the same principle and, hence, we allow the grounds raised by the assessee before us. The other decisions relied upon by the learned counsel for the assessees are not being discussed.
As regards the disallowance u/s. 14A read with Rule 8D of Rs.2,86,616/- is concerned, the brief facts are that the assessee in its computation of income had shown an amount of Rs.10,62,63,987/- as dividend income, which was claimed as exempt. In response to show cause notice by the AO, the assessee submitted that it had incurred expenses of Rs.18,01,517/- and out of the said expenses the assessee had suo-moto disallowed sum of Rs.15,14,901/-. The learned AO held that as per Rule 8D disallowance for indirect expenditure comes to Rs.1,52,10,895/-, but, since the assessee has debited total expenses of Rs.18,01,517/- only, therefore, disallowance should be restricted to the same amount. The learned CIT(A) noted that suo-moto disallowance of Rs.15,14,901/- should be reduced from Topstar Mercantile Private Limited the disallowance of Rs.18,01,517/- and did not agree with the assessee that no further disallowance should be made.
After considering the rival submissions and on perusal of the relevant findings given in the impugned order, we find that the only dispute is with regard to the disallowance of indirect expenditure in terms of Rule 8D(2)(iii). Since the assessee has debited total indirect expenditure of Rs.18,01,517/-, the AO has restricted the disallowance to this sum only. The learned CIT(A) has given relief on account of suo moto disallowance made by the assessee at Rs.15,14,907/- and accordingly, net disallowance which has been challenged before us is Rs. 2,86,616/-
Before us the learned counsel had submitted that the assessee has given the working of disallowance u/s. 14A after analyzing each and every nature of expenses, the break-up of which is as under:
Sr. Particulars Amount in Rs. No 1 Professional fees for merger 3,39,976 2 Depository charges 11,49,245 3 Appeal fees 19,000 4 Interest on TDS 6,198 5 Preliminary expenses 480 Total 15,14,901 Apart from that the assessee had also given the break-up of expenditure of Rs.2,86,616/-, which was stated that it had nothing to do with the earning of exempt income. The details of which are as under:- Sr. No Particulars Amount in Amount in Rs. Rs. 1 Professional fees paid to:- Singh & Co towards Professional 21,120 Fees
Topstar Mercantile Private Limited
Nilesh Shah towards Professional 24,159 Fees A K Jain & Co. towards 13,000 Certification Charges J D Mistry towards Professional 1,12,500 Fees for IT Appeal Nitesh S Joshi towards 22,500 Professional Fees for ITAT Sanjiv Shah towards Consultancy 75,000 2,68,279 Services 2 Audit fees 16,545 3 Filing fees 900 4 Bank Charges 894 Total 2,86,616
On the other hand, the learned CIT-DR strongly relied upon the orders of the authorities below.
After considering the above facts that, when the assessee has given the entire break-up and details of the expenditure, then can it be said that the aforesaid expenses are at all attributable for the earning of exempt income. Without there being any contrary material or finding by the AO, we do not find any reason to disallow the entire expenditure debited to the Profit & loss account. It is axiomatic that the expenditure which has to be disallowed u/s 14A has to be in relation to the earning of the exempt income and subsection 2 of section 14A mandates that the AO has to determine the amount of expenditure incurred in relation to such exempt income only. The section further mandates that the AO having regard to the accounts of the assessee is not satisfied with the correctness of the claim of the assessee in respect of such expenditure relating to exempt income, then only he can proceed to disallow as per rule 8D. Here in this case there is no such exercise has been done by the AO as was required under the law. Therefore, we do not find any reason to disallow the entire expenditure as debited in the Profit & loss account and, hence,
Topstar Mercantile Private Limited the disallowance of Rs.15,14,901/- made by the assessee is upheld and the balance of Rs.2,86,616/- is directed to be deleted. Ground no.3 is allowed. 10. In the result, the assessee’s appeal is allowed.
Order pronounced in the open court on 6th March, 2017.