2018 (3) TMI 805 - SC - Income Tax

Section 14A applies apportionment theory not dominant purpose test for expenditure disallowance on non-taxable dividend income

The SC held that Section 14A applies based on apportionment theory, not dominant purpose test, when determining expenditure disallowance for non-taxable ... Applicability of section 14A - Method for determining amount of expenditure in relation to income not includible in total income - principle of apportionment of expenses - scope and meaning of the phrase 'in relation to' in Section 14A(1) - whether the dominant purpose test, which is pressed into service by the assessee would apply while interpreting Section 14A of the Act or we have to go by the theory of apportionment - retrospective or prospective - Different decision of different High Courts. Held that:- The entire dispute is as to what interpretation is to be given to the words ‘in relation to’ in the given scenario, viz. where the dividend income on the shares is earned, though the dominant purpose for subscribing in those shares of the investee company was not to earn dividend. The dominant purpose for which the investment into shares is made by an assessee may not be relevant. No doubt, the assessee like Maxopp Investment Limited may have made the investment in order to gain control of the investee company. However, that does not appear to be a relevant factor in determining the issue at hand. Fact remains that such dividend income is non-taxable. In this scenario, if expenditure is incurred on earning the dividend income, that much of the expenditure which is attributable to the dividend income has to be disallowed and cannot be treated as business expenditure. Keeping this objective behind Section14A of the Act in mind, the said provision has to be interpreted, particularly, the word ‘in relation to the income’ that does not form part of total income. Prior to introduction of Section 14A the law was that when an assessee had a composite and indivisible business which had elements of both taxable and non-taxable income, the entire expenditure in respect of said business was deductible and, in such a case, the principle of apportionment of the expenditure relating to the non-taxable income did not apply. The principle of apportionment was made available only where the business was divisible. It is to find a cure to the aforesaid problem that the Legislature has not only inserted Section 14A by the Finance (Amendment) Act, 2001 but also made it retrospective, i.e., 1962 when the Income Tax Act itself came into force. The aforesaid intent was expressed loudly and clearly in the Memorandum explaining the provisions of the Finance Bill, 2001. We, thus, agree with the view taken by the Delhi High Court in Daga Capital Management (P.) Ltd. [2008 (10) TMI 383 - ITAT MUMBAI], and are not inclined to accept the opinion of Punjab & Haryana High Court Principal Commissioner of Income Tax v. State Bank of Patiala [2017 (2) TMI 125 - PUNJAB AND HARYANA HIGH COURT] which went by dominant purpose theory. The aforesaid reasoning would be applicable in cases where shares are held as investment in the investee company, may be for the purpose of having controlling interest therein. On that reasoning, appeals of Maxopp Investment Limited [2011 (11) TMI 267 - DELHI HIGH COURT] as well as similar cases where shares were purchased by the assessees to have controlling interest in the investee companies have to fail and are, therefore, dismissed. Where shares are held as stock-in-trade - Held that:-when the shares are held as ‘stock-in-trade’, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail [2017 (2) TMI 125 - PUNJAB AND HARYANA HIGH COURT], though law in this respect has been clarified hereinabove. Before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance u/s 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO. Rule 8D of the Rules is prospective in nature and could not have been made applicable in respect of the Assessment Years prior to 2007 when this Rule was inserted. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court in these appeals relate primarily to the interpretation and application of Section 14A(1) of the Income Tax Act, 1961. The principal issues are:Whether expenditure incurred by an assessee in relation to income exempt from tax under the Act (specifically dividend income) is to be disallowed as a deduction under Section 14A(1).Whether the 'dominant purpose' or 'dominant intention' behind the investment in shares (such as acquiring controlling interest or holding shares as stock-in-trade) is relevant in determining if the expenditure is 'in relation to' the exempt income.The scope and meaning of the phrase 'in relation to' in Section 14A(1), particularly whether it requires a direct and proximate connection between the expenditure and the exempt income.The applicability of the principle of apportionment of expenditure between taxable and non-taxable income in cases involving exempt dividend income.The distinction between shares held as investment (capital account) and shares held as stock-in-trade (business assets) and its impact on the applicability of Section 14A.The validity and applicability of Rule 8D of the Income Tax Rules, 1962, which prescribes the method for determining the amount of expenditure in relation to exempt income.Whether the retrospective effect of Section 14A applies to assessment years prior to the insertion of Rule 8D.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Interpretation of Section 14A(1) and the phrase 'in relation to income which does not form part of the total income'The legal framework is Section 14A(1) of the Income Tax Act, which disallows any deduction for expenditure incurred 'in relation to income which does not form part of the total income under this Act.' This provision was inserted retrospectively from April 1, 1962, to prevent assessees from claiming deductions for expenses incurred to earn exempt income, thereby avoiding double benefit.Precedents such as CIT v. Walfort Share and Stock Brokers P Ltd. elucidate that Section 14A clarifies that expenditure can only be allowed to the extent it is relatable to taxable income. The Court emphasized that the exemption applies to net income, so expenses attributable to exempt income cannot reduce taxable income.The Court reasoned that the phrase 'in relation to' must be given an expansive meaning consistent with the legislative intent to prevent misuse of exemptions. It rejected the narrow interpretation requiring a direct and proximate causal connection between expenditure and exempt income.Evidence from the Memorandum explaining the Finance Bill, 2001, and judicial pronouncements confirm that Section 14A was enacted to curb the practice of claiming deductions against taxable income for expenses incurred to earn exempt income.Application of law to facts: The Court held that any expenditure incurred that is attributable to exempt income (such as dividend income) must be disallowed, regardless of the dominant purpose behind the investment. The principle of apportionment applies to separate the expenditure related to exempt income from that related to taxable income.Competing arguments: Assessees argued for a dominant purpose test, contending that if the main purpose of acquiring shares was not to earn exempt dividend income but to gain control or trade shares, Section 14A should not apply. The Court rejected this, holding that the dominant purpose is irrelevant; what matters is whether expenditure is incurred in relation to exempt income.Conclusion: The Court concluded that the phrase 'in relation to' in Section 14A(1) is broad and does not depend on the dominant purpose. Expenditure attributable to exempt income must be disallowed under Section 14A.Issue 2: Applicability of the dominant purpose test in cases of shares held for control or as stock-in-tradeThe assessees contended that when shares are acquired primarily to gain or retain controlling interest in a company, or held as stock-in-trade for business purposes, the expenditure incurred (e.g., interest on loans) is not 'in relation to' the exempt dividend income, which is only incidental.The Delhi High Court and other courts had divergent views. The Delhi High Court rejected the dominant purpose test, holding that the expenditure related to exempt income is disallowable regardless of the motive. Conversely, the Punjab and Haryana High Court and Karnataka High Court accepted the dominant purpose test, especially in cases where shares were held as stock-in-trade.The Court analyzed the legislative intent and prior case law, including the Supreme Court's ruling in Walfort Share and Stock Brokers, and held that dominant purpose is not a relevant consideration under Section 14A.For shares held as investment for control (capital account), the Court held that the expenditure incurred in relation to exempt dividend income must be disallowed. This is because dividend income is exempt and any expenditure related to earning that income cannot be deducted.For shares held as stock-in-trade (business assets), the Court recognized that the main purpose is trading for profit, and dividend income earned incidentally is exempt. However, expenditure incurred in relation to such exempt income must be apportioned and disallowed to the extent attributable to the exempt income.Competing arguments: Assessees argued that in the stock-in-trade scenario, the expenditure is incurred for trading profits, not for earning exempt dividend income, so Section 14A should not apply. The Court agreed that the expenditure must be apportioned, and only that portion attributable to exempt income disallowed.Conclusion: The dominant purpose test is not applicable for shares held as investment for control; expenditure related to exempt dividend income is disallowed. For shares held as stock-in-trade, expenditure is to be apportioned, and disallowance under Section 14A applies only to the portion attributable to exempt income.Issue 3: Applicability and retrospective effect of Rule 8D of the Income Tax Rules, 1962Rule 8D prescribes the method for determining the amount of expenditure incurred in relation to exempt income when the Assessing Officer is not satisfied with the assessee's claim. It includes formulae for apportioning interest expenditure and other expenses.The Court noted that Rule 8D was inserted with effect from March 24, 2008, and held in prior rulings that it is prospective in nature and cannot be applied retrospectively to assessment years prior to its insertion.Application of law to facts: In appeals relating to assessment years before 2008, the Court held that Rule 8D cannot be applied, and disallowance under Section 14A must be determined on other bases. For later years, Rule 8D provides the method for apportionment.Competing arguments: Revenue argued for retrospective application of Rule 8D to enhance disallowances. The Court rejected this, affirming the prospective nature of Rule 8D.Conclusion: Rule 8D is prospective and applies only to assessment years from 2008 onwards. Disallowance under Section 14A for earlier years must be determined without Rule 8D.Issue 4: Treatment of expenditure and income in cases involving banking institutions and shares held as stock-in-tradeThe Punjab and Haryana High Court considered cases where banks hold shares as stock-in-trade and earn exempt dividend or interest income. The CBDT Circular No. 18/2015 clarified that income from such securities is business income under 'profits and gains of business or profession' and not income from other sources.The Court recognized the distinction between shares held as investment and shares held as stock-in-trade. For banks and similar entities, the shares held as stock-in-trade are part of business assets, and income therefrom is business income.In such cases, although dividend income is exempt, the expenditure incurred is related to the business activity of trading shares. The Court held that only expenditure directly attributable to exempt income should be disallowed under Section 14A, and the rest allowed as business expenditure.Conclusion: For shares held as stock-in-trade by banks or traders, Section 14A applies only to the extent of expenditure attributable to exempt income, with apportionment as per Rule 8D. The dominant purpose test is not applicable.Issue 5: Application of apportionment principle and Assessing Officer's satisfaction under Section 14A(2)Section 14A(2) empowers the Assessing Officer to determine the amount of expenditure incurred in relation to exempt income if not satisfied with the assessee's claim, applying Rule 8D.The Court emphasized that the AO must record satisfaction before making suo moto disallowance under Section 14A. The nature of loans taken and funds utilized must be examined to determine the correct apportionment.Conclusion: AO's satisfaction is a prerequisite for disallowance under Section 14A(2), and apportionment must be done in accordance with Rule 8D where applicable.3. SIGNIFICANT HOLDINGSThe Court established the following core principles and made key determinations:'Axiomatically, it is that expenditure alone which has been incurred in relation to the income which is includible in total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempted income, then such an expenditure would obviously be treated as not related to the income that is exempted from tax, and such expenditure would be allowed as business expenditure.''The dominant purpose for which the investment into shares is made by an assessee may not be relevant. No doubt, the assessee like Maxopp Investment Limited may have made the investment in order to gain control of the investee company. However, that does not appear to be a relevant factor in determining the issue at hand.''The principle of apportionment of expenses comes into play as that is the principle which is engrained in Section 14A of the Act.''Where shares are held as stock-in-trade, the main purpose is to trade in those shares and earn profits therefrom. However, ... certain dividend is also earned, though incidentally, which is also an income. ... depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned.''Rule 8D is prospective in nature and cannot be applied retrospectively to assessment years prior to 2007.''Before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct.'Final determinations:Expenditure incurred in relation to exempt income must be disallowed under Section 14A, irrespective of the dominant purpose behind the investment.Where shares are held as investment to acquire or retain controlling interest, expenditure attributable to exempt dividend income is disallowable.Where shares are held as stock-in-trade, expenditure must be apportioned; only the portion attributable to exempt income is disallowed.Rule 8D applies prospectively from 2008 and prescribes the method for apportionment of expenditure.AO's satisfaction is essential before making disallowance under Section 14A(2).Appeals of assessees holding shares for control or as investment are dismissed; appeals of Revenue relating to stock-in-trade and pre-Rule 8D periods are dismissed except one appeal allowed on facts.