2011 (3) TMI 21 - HC - Income Tax

Taxpayer wins appeal against disallowance of UTI unit trading losses despite claiming tax-free dividends

Eveready Industries India Ltd. Versus Commissioner of Income-Tax, Kolkata- II & Anr.

The Calcutta HC allowed the assessee's appeal regarding disallowance of Rs. 63,84,000 loss from purchase and resale of UTI units. The Revenue objected ... Disallowance of loss – On account of purchase and resale of UTI units - The assessee incurred a loss of Rs. 63,84,000/- which is the subject matter of dispute - The real objection of the Department appears to be that the assessee is getting tax-free dividend; that at the same time it is claiming loss on the sale of the units; that the assessee had purposely and in a planned manner entered into a pre-meditated transaction of buying and selling units yielding exempted dividends - In the case of Union of India Vs. Azadi Bachao Andolan (2003 -TMI - 6130), that a citizen is free to carry on his business within the four corners of the law and that mere tax planning, without any motive to evade taxes through colourable devices is not frowned upon – Appeal is allowed 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court were:(a) Whether the Income-tax Appellate Tribunal ('Tribunal') was justified in upholding the Assessing Officer's disallowance of loss claimed by the assessee on purchase and resale of UTI units, particularly when the transaction was alleged to be a pre-determined loss entered into solely for tax benefits.(b) Whether the Tribunal's finding that the transactions were colourable devices or sham transactions aimed at reducing tax liability was correct and consistent with the materials on record.(c) Whether the ratio of the Supreme Court's decision in the McDowell case applied to the facts of the present case.(d) Whether losses arising from dividend stripping transactions prior to the insertion of Section 94(7) of the Income-tax Act, 1961, could be disallowed on the ground of being colourable devices or tax avoidance schemes.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Legitimacy of the loss claimed on purchase and resale of UTI unitsRelevant legal framework and precedents: The principal legal provisions involved were Sections 10(33) (exemption of dividend income), 80M (deduction in respect of inter-corporate dividends), and the judicial precedents including McDowell & Co. Ltd. v. CTO and Union of India v. Azadi Bachao Andolan. The Supreme Court's recent ruling in Commissioner of Income-tax vs. Walfort Share And Stock Brokers P. Ltd. was heavily relied upon.Court's interpretation and reasoning: The Court examined the factual matrix where the assessee purchased 35 lakh UTI units cum-dividend and sold them back to the same party at a lower price post book closure, incurring a loss of approximately Rs. 63.84 lakhs but receiving dividend income of Rs. 63 lakhs. The Assessing Officer initially accepted the loss but was directed by the Commissioner of Income-tax under Section 263 to reassess, leading to disallowance of the loss on the basis that the transaction was pre-determined and a sham.The Court noted the irrevocable commitment to sell back the units at a loss, which was relied upon by the Assessing Officer and CIT(A) to characterize the transaction as a sham and collusive. However, the Supreme Court's decision in Walfort clarified that mere pre-planning or tax planning does not render a transaction invalid or a colourable device, provided it is genuine and within the four corners of the law.Key evidence and findings: The correspondence between the assessee and Peerless showed an advance commitment to sell at a loss. The dividend income was exempt under Section 10(33). The Assessing Officer disallowed the loss, but the Tribunal allowed it partially, restricting the allowance to the extent of dividend income brought to tax.Application of law to facts: The Court applied the Supreme Court's reasoning in Walfort to hold that the transaction, though pre-planned, was genuine and not a sham. The dividend income exemption was a legitimate statutory benefit. The Court emphasized that the loss on sale relating to exempt income could not be disallowed prior to the insertion of Section 94(7) (effective April 1, 2002).Treatment of competing arguments: The Revenue argued that the transaction was a colourable device to strip dividend income and claim artificial loss. The Court rejected this, relying on the principle that tax planning without evasion or fraud is permissible. The Revenue's reliance on McDowell was countered by the Azadi Bachao Andolan ruling, clarifying the limits of McDowell.Conclusions: The Court held that the loss was allowable and the transaction was not a sham. The Assessing Officer's disallowance was set aside.Issue 2: Applicability of the McDowell principle and characterization of the transaction as a colourable deviceRelevant legal framework and precedents: The McDowell case established that transactions entered into with the sole purpose of tax avoidance and as colourable devices can be disregarded. However, the later Azadi Bachao Andolan case clarified that legitimate tax planning is not to be condemned.Court's interpretation and reasoning: The Court observed that the Tribunal's reliance on McDowell to treat the transaction as a sham was a misconstruction of the decision. The Supreme Court in Walfort and Azadi Bachao Andolan emphasized that citizens are entitled to arrange their affairs to minimize tax liability within the law. The Court found no evidence of mala fide intention or evasion.Application of law to facts: The transaction involved genuine sale and purchase, receipt of dividend income exempt under law, and no element of fraud or evasion. The Court held that the transaction did not fall within the ambit of colourable devices as envisaged in McDowell.Treatment of competing arguments: The Revenue's contention that the transaction was a sham was rejected on the ground that the statutory provisions allowed such transactions and the loss was real.Conclusions: The Court concluded that the McDowell ratio was not applicable and the transaction was not a colourable device.Issue 3: Effect of insertion of Section 94(7) and treatment of losses relating to exempt dividend incomeRelevant legal framework and precedents: Section 94(7) was inserted by the Finance Act, 2001, effective April 1, 2002, to curb dividend stripping transactions by disallowing losses to the extent of dividend income received. Prior to this, such losses could not be disallowed solely on the ground of dividend stripping.Court's interpretation and reasoning: The Court noted that the present case pertained to Assessment Year 1990-91, well before Section 94(7) came into effect. The Supreme Court in Walfort held that losses related to exempt income prior to April 1, 2002, could not be disallowed as not genuine. The Court also explained the rationale behind the delayed effect of Section 94(7), recognizing the investment patterns of public sector undertakings and regulatory oversight by SEBI.Application of law to facts: Since the transaction occurred before April 1, 2002, the Court held that the Assessing Officer could not disallow the loss on the ground of dividend stripping or colourable device. The loss was real and allowable.Treatment of competing arguments: The Revenue's argument for disallowance based on the later inserted Section 94(7) was rejected as not applicable retrospectively.Conclusions: The Court held that the loss was allowable in full for the relevant assessment year.3. SIGNIFICANT HOLDINGSThe Court held:'The fact that the dividend received by the assessee was tax free is the position recognized under Section 10(33) of the Income-Tax Act. It appears that the assessee has utilized the said provision of the statute and as such, the same cannot be called as an abuse of the process of law. Even if we assume for the sake of argument, that the transaction was a pre-planned one, there was nothing to impeach the genuineness of the transaction.''A citizen is free to carry on his business within the four corners of the law and that mere tax planning, without any motive to evade taxes through colourable devices is not frowned upon.''In a case arising before April 1, 2002, the losses pertaining to exempted income cannot be disallowed.'Accordingly, the Court set aside the orders of the lower authorities and directed the Assessing Officer to allow the loss claimed by the assessee on the purchase and resale of UTI units and to grant the benefit of exemption of dividend income under the relevant provisions.