2010 (7) TMI 15 - SC - Income Tax

Dividend stripping loss allowed as Section 14A doesn't apply to post-purchase losses, only expenditure disallowance

The SC ruled in favor of the assessee in a dividend stripping transaction case where the AO disallowed a loss of Rs. 2,09,44,793, claiming it was an ... Dividend Stripping Transaction - disallowance of the reduced loss - Business Transaction - Setoff - reconciliation of Sections 14A and 94(7) - Whether in dividend stripping transaction (alleged to be colourable device by the Department) the loss on sale of units could be considered as expenditure in relation to earning of dividend income exempt under Section 10(33), disallowable under Section 14A of the Act? Held that:- The dividend pay-out, according to the Department, the NAV of the mutual fund, which was Rs. 17.23 per unit on the record date, fell to Rs. 13.23 on 27.3.2000 (the next trading date) and, thus Rs. 4/- per unit, according to the Department, constituted 'expenditure incurred' in terms of Section 14A of the Act. In its return, the assessee, thus, claimed the dividend received as exempt under Section 10(33) and also claimed set-off for the loss against its taxable income, thereby seeking to reduce its tax liability and gain tax advantage. The AO in the present case has disallowed the loss of Rs. 1,82,12,862 on the sale of 40% tax-free units of the mutual fund. The AO held that the assessee had purposely and in a planned manner entered into a pre-meditated transaction of buying and selling units yielding exempted income with the full knowledge about the guaranteed fall in the market value of the units and the payment of tax-free dividend, hence, disallowance of the loss. We are concerned with the assessment years prior to insertion of Section 94(7) vide Finance Act, 2001 w.e.f. 1.4.2002. We are of the view that the AO had erred in disallowing the loss. In the case of Vijaya Bank v. Additional Commissioner of Income Tax (1991) 187 ITR 541, it was held by this Court that where the assessee buys securities at a price determined with reference to their actual value as well as interest accrued thereon till the date of purchase the entire price paid would be in the nature of capital outlay and no part of it can be set off as expenditure against income accruing on those securities. As stated above, Section 14A was inserted w.e.f. 1.4.1962 whereas Section 94(7) was inserted w.e.f. 1.4.2002. The reason is obvious. Parliament realized that several public sector undertakings and public sector enterprises had invested huge amounts over last couple of years in the impugned dividend stripping transactions so also declaration of dividends by mutual fund are being vetted and regulated by SEBI for last couple of years. If Section 94(7) would have been brought into effect from 1.4.1962, as in the case of Section 14A, it would have resulted in reversal of large number of transactions. This could be one reason why the Parliament intended to give effect to Section 94(7) only w.e.f. 1.4.2002. It is important to clarify that this last reasoning has nothing to do with the interpretations given by us to Sections 14A and 94(7). However, it is the duty of the court to examine the circumstances and reasons why Section 14A inserted by Finance Act 2001 stood inserted w.e.f. 1.4.1962 while Section 94(7) inserted by the same Finance Act as brought into force w.e.f. 1.4.2002. Reconciliation of Sections 14A and 94(7) - Section 14A applies to cases where the assessee incurs expenditure to earn tax free income but where there is no acquisition of an asset. In cases falling under Section 94(7), there is acquisition of an asset and existence of the loss which arises at a point of time subsequent to the purchase of units and receipt of exempt income. It occurs only when the sale takes place. Section 14A comes in when there is claim for deduction of an expenditure whereas Section 94(7) comes in when there is claim for allowance for the business loss. We may reiterate that one must keep in mind the conceptual difference between loss, expenditure, cost of acquisition, etc. while interpreting the scheme of the Act. A mere receipt of dividend subsequent to purchase of units, on the basis of a person holding units at the time of declaration of dividend on the record date, cannot go to offset the cost of acquisition of the units. Therefore, AS-13 has no application to the facts of the present cases where units are bought at the ruling NAV with a right to receive dividend as and when declared in future and did not carry any vested right to claim dividends which had already accrued prior to the purchase. Thus, we find no infirmity in the impugned judgment of the High Court and, accordingly, these Civil Appeals filed by the Department are dismissed with no order as to costs. The principal legal question considered by the Court was whether losses arising from dividend stripping transactions prior to 1.4.2002 could be disallowed on the ground that such losses were artificial and not genuine business losses, specifically addressing the tax treatment of such losses and the interplay of Sections 10(33), 14A, and 94(7) of the Income Tax Act, 1961.Additional issues considered included:Whether the amount received as dividend in such transactions constituted a 'return of investment' or 'expenditure incurred' under Section 14A, thereby justifying disallowance of losses claimed.The impact of the insertion of Section 94(7) with effect from 1.4.2002 on transactions occurring before and after that date.The reconciliation and applicability of Sections 14A and 94(7) in the context of dividend stripping transactions.Issue-wise Detailed Analysis1. Whether the dividend received constitutes 'expenditure incurred' under Section 14ARs.Legal Framework and Precedents: Section 14A disallows deduction of expenditure incurred in relation to income which does not form part of total income under the Act (i.e., exempt income). Section 10(33) exempts dividend income from mutual funds from tax. The Department argued that the fall in Net Asset Value (NAV) post-dividend payout represented expenditure incurred to earn exempt income and thus should be disallowed under Section 14A.Court's Interpretation and Reasoning: The Court examined the nature of dividend and the loss claimed. It distinguished between 'return on investment' (income/profit) and 'return of investment' (capital recovery). The Court held that dividend income is a revenue receipt exempt under Section 10(33), and the loss arising from sale of units post-dividend payout is a capital loss, not an expenditure. The NAV drop post-dividend is a reflection of the dividend payout and does not constitute an expenditure in terms of Section 14A.The Court emphasized that expenditure under Section 14A refers to actual outgoings or deductible expenses under Sections 30 to 43B of the Act, such as rent, salaries, interest, etc., which impact the Profit & Loss account. A return of investment or pay-back reduces the cost of acquisition and affects the balance sheet, not the Profit & Loss account, and therefore cannot be construed as 'expenditure incurred'.Key Evidence and Findings: The Court noted the factual position that the dividend was declared and received, NAV declined correspondingly, and the loss claimed was due to sale of units at the reduced NAV. The Department's 'two asset' theory (segregating dividend and ex-dividend units) was rejected as Section 14A does not apply to such capital losses.Application of Law to Facts: The loss on sale of units was not disallowable under Section 14A as it was not an expenditure but a capital loss. The dividend income remained exempt under Section 10(33).Treatment of Competing Arguments: The Department's contention that the dividend was a return of investment constituting expenditure was rejected. The assessee's argument that Section 14A does not apply to capital losses arising from acquisition and sale of assets was accepted.Conclusion: The dividend received does not constitute 'expenditure incurred' under Section 14A, and the loss claimed on sale of units is not disallowable on this ground.2. Impact of Section 94(7) effective from 1.4.2002 on the impugned transactionsLegal Framework: Section 94(7) was introduced to curb tax avoidance by disallowing losses arising from purchase and sale of securities or units within three months before and after the record date where dividend income is exempt. It provides that losses to the extent of the exempt dividend income shall be ignored for tax purposes.Court's Interpretation and Reasoning: The Court noted that Section 94(7) was prospective, effective from 1.4.2002. Transactions prior to this date could not be governed by Section 94(7). The Court held that before 1.4.2002, losses arising from dividend stripping transactions could not be disallowed merely because they were pre-planned or yielded exempt dividend income. The Court relied on precedents affirming that taxpayers may engage in tax planning within the law and that such planning is not abuse or evasion.For transactions after 1.4.2002, Section 94(7) applies and limits the loss allowable to the amount exceeding the exempt dividend. Thus, losses up to the amount of dividend received are ignored, but losses exceeding that amount remain allowable.Key Evidence and Findings: The Court examined the legislative intent and the explanatory memorandum accompanying the Finance Bill 2001. It found that Parliament intended to curb only short-term losses created by such transactions from 1.4.2002 onwards, not to retrospectively disallow losses before that date.Application of Law to Facts: The losses claimed for assessment years prior to 1.4.2002 were held allowable in full. For assessment years after that date, losses are to be reduced by the amount of exempt dividend under Section 94(7).Treatment of Competing Arguments: The Department's argument that losses should be disallowed even before 1.4.2002 was rejected. The assessee's submission that Section 94(7) does not apply retrospectively was accepted.Conclusion: Section 94(7) applies prospectively from 1.4.2002 and restricts loss allowance only for transactions after that date. Losses before that date cannot be disallowed on this ground.3. Reconciliation of Sections 14A and 94(7)Legal Framework: Section 14A disallows deduction of expenditure incurred in relation to exempt income. Section 94(7) disallows losses on dividend stripping transactions to the extent of exempt dividend income.Court's Interpretation and Reasoning: The Court held that Sections 14A and 94(7) operate in different fields and are conceptually distinct. Section 14A deals with disallowance of expenditure incurred in earning exempt income, typically expenses deductible under Sections 30 to 43B. Section 94(7) deals with disallowance of losses arising from acquisition and sale of securities or units within a specified period.The Court emphasized that expenditure and loss are conceptually different: expenditure is an outgoing deductible against income, while loss arises on sale of an asset. Section 14A applies where there is no acquisition of an asset, while Section 94(7) applies where there is acquisition and subsequent sale resulting in loss.The Court rejected the Department's submission that both Sections 14A and 94(7) apply simultaneously to the same transaction, which would lead to double counting and render Section 94(7) redundant.Key Evidence and Findings: The Court referred to Circular No. 14 of 2001 and the legislative history showing that Section 14A was effective from 1.4.1962, while Section 94(7) was inserted effective 1.4.2002, indicating different objectives and applicability.Application of Law to Facts: The Court concluded that Section 14A applies to disallow expenditure incurred to earn exempt income where no asset is acquired, while Section 94(7) applies to disallow losses on sale of assets acquired within a specified period. Both provisions cannot be applied cumulatively to the same transaction.Treatment of Competing Arguments: The Department's argument for simultaneous applicability was rejected. The assessee's submission for distinct operation of the two sections was accepted.Conclusion: Sections 14A and 94(7) operate in different domains and cannot be reconciled to apply simultaneously to the same transaction. Section 14A relates to disallowance of expenditure, Section 94(7) to disallowance of loss on dividend stripping transactions.Additional ObservationsThe Court also addressed the applicability of Accounting Standard No. 13 relied upon by the Revenue, clarifying that the standard distinguishes between return on investment and return of investment, and that the dividend received post-purchase does not reduce the cost of acquisition. Thus, the accounting standard has no application to the facts where units were bought at ruling NAV with future dividend rights.Significant Holdings'A return of investment or a pay-back is not such a Debit Item as explained above, hence, it is not 'expenditure incurred' in terms of Section 14A.''The basic principle of taxation is to tax the net income, i.e., gross income minus the expenditure. On the same analogy the exemption is also in respect of net income. Expenses allowed can only be in respect of earning of taxable income. This is the purport of Section 14A.''Section 94(7) applies prospectively from 1.4.2002 and restricts the loss allowable only to the extent of the dividend income received or receivable.''Sections 14A and 94(7) operate in different fields. Section 14A deals with disallowance of expenditure incurred in earning tax-free income whereas Section 94(7) deals with disallowance of loss on acquisition and sale of securities or units.''The two provisions cannot be applied simultaneously to the same transaction as that would lead to double counting and render Section 94(7) nugatory.''The assessee had made use of the provision of the Act to receive tax-free dividend income and claim loss on sale of units; such use cannot be called abuse of law.''Merely because the transaction was pre-planned or pre-meditated does not render the loss disallowable or the transaction a sham.'The Court dismissed the appeals filed by the Department, thereby affirming the allowance of losses on dividend stripping transactions prior to 1.4.2002 and clarifying the limited scope of Section 94(7) and the non-applicability of Section 14A to such losses.