2025 (11) TMI 31 - AT - Income Tax

Disallowance under s.14A r.w. r.8D deleted; s.14A excludes stock-in-trade; CSR deductible under s.80G; ESOP discount allowed under s.37.

ITAT MUMBAI set aside the AO's disallowance under s.14A r.w. r.8D, holding no requisite satisfaction was recorded and the assessee's suo-motu computation ... Disallowance u/s. 14A r.w.r. 8D - suo-motu disallowance offered by the Appellant for the purpose of disallowance - Mandation of recording satisfaction - HELD THAT:- From the plain reading of the assessment order, the satisfaction/dissatisfaction of the AO is not discernible at all. He has failed to point out any infirmity in the suo motu disallowance made by the assessee itself. It is noticed that the issue of recording of satisfaction is a recurrent one involving identical facts in various assessment years in the case of the assessee’s own case and the ITAT has allowed its claim in appeals for AYs 2016-17/2017-18 and 2018-19. Therefore, in absence of any such satisfaction no disallowance u/s14A of the Act can be made. In the present case before us, AO has not taken into consideration the elaborate details and scientific basis adopted while arriving at the suo moto disallowance but has proceeded merely on his own presumptions to invoke section 14A r.w.r. 8D. Thus, Rule 8D cannot be invoked where the suo moto disallowance made by the assessee is not found to be satisfactory by the AO having regard to the accounts of the assessee. In the absence of recording the aforesaid fact of non- satisfaction in terms of section 14A(2) of the Act, invocation of Rule 8D is not permissible. Since, in the present case, no proper satisfaction has been recorded by the AO in terms of the provisions of section 14A(2) of the Act, having regard to the accounts of the assessee about the correctness of the claim of the assessee in respect of expenditure incurred in relation to exempt income, respectfully following the aforesaid decisions, we do not find any reason for upholding the disallowance made by the AO under section 14A read with Rule 8D of the Rules. Accordingly, the same is directed to be deleted. The ground of appeal is therefore allowed. CIT(A) directing the ld. AO to consider investments held as stock-in-trade also for the purposes of computing disallowance u/s. 14A r.w.r. 8D - We find that as far as shares held as stock in trade by the assessee, which is duly reflected as such in its financial statements, the matter is no more res integra and the value of shares so held as stock-in-trade has to be excluded for the purposes of computation of disallowance u/s. 14A of the Act. As relying n Religare Securities Ltd. [2024 (2) TMI 1476 - ITAT DELHI], South Indian Bank Ltd. [2021 (9) TMI 566 - SUPREME COURT] and Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT] we do not find any merit in the appellate order directing the AO to include the shares held as stock-in-trade for the purpose of computation of disallowance u/s. 14A of the Act and recompute the disallowance. The order is therefore, set aside and the AO is directed to delete the disallowance made as per the directions of the ld.CIT(A). Allowance of CSR donation - whether the donation is “donation” refers to an amount paid voluntarily by a person?” - HELD THAT:- We are of the considered opinion that whether the CSR expenditure is allowable u/s. 80G of the Act is no more res integra by a catena of decisions by various Co-ordinate Benches of the Tribunal. The Mumbai Bench of the Tribunal in the case of Alubond Dacs India (P.) Ltd. [2024 (7) TMI 636 - ITAT MUMBAI] fit to hold that the assessee is entitled to deduction claimed u/s. 80G of the Act towards the CSR expenditure incurred by it. Discount on issue of ESOP - whether allowable deduction in computing the income under the head profits and gains of the business - whether it is contingent and capital expenditure related to the issue of new share capital and hence not allowable? - HELD THAT:- We find that the law on the subject, therefore, is unanimous as various tribunals by following the decision of Biocon Ltd. [2020 (11) TMI 779 - KARNATAKA HIGH COURT] have decided the issue in favour of the assessee. Secondly, we observe that the ESOP scheme under consideration was part of the Annual Report of the assessee and further the specific details of ESOP benefit granted to its employees had been duly disclosed to the AO during the course of assessment proceedings, being the difference between the market price of shares at the time of grant of option to these employees and the market price of such shares as on the date of exercise by employees of the assessee company. Therefore, even from this perspective, the expenses so claimed were not contingent in nature, since the assessee had claimed the ESOP expenses at the time of actual exercise of option by its employees, during the year under consideration. Accordingly, on the subject as on date, which have consistently taken the view that ESOP expenses are allowable in the hands of assessee under section 37 of the Act and looking into the facts of the assessee's case, we are of the considered view that ld. CIT(A) has not erred in facts and in law in deciding this issue in favour of the assessee. ISSUES PRESENTED AND CONSIDERED 1. Whether the Assessing Officer may invoke Rule 8D to compute disallowance under section 14A where the assessee has made a suo-moto disallowance, in absence of an objectively recorded satisfaction by the AO 'having regard to the accounts of the assessee'. 2. Whether securities reflected as stock-in-trade in the assessee's financial statements must be included for computation of disallowance under section 14A read with Rule 8D, or are to be excluded. 3. Whether amounts spent to comply with statutory Corporate Social Responsibility (CSR) obligations (Companies Act, s.135) can qualify for deduction under section 80G if the donee satisfies the conditions of s.80G. 4. Whether the discount on issue/exercise of ESOPs (difference between grant/exercise price and market price) is an allowable deduction under section 37(1) as a revenue expense, or is a capital/contingent item not deductible. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Invoking Rule 8D where assessee made suo-moto disallowance: legal framework Legal framework: Section 14A disallows expenditure in relation to exempt income; section 14A(2) contemplates application of Rule 8D. Rule 8D prescribes formulae for apportionment. Prior decisions require the AO to record satisfaction that the assessee's suo-moto apportionment is unacceptable 'having regard to the accounts of the assessee' before applying Rule 8D. Precedent treatment: Followed Maxopp Investment Ltd. (Supreme Court) and subsequent decisions (including Godrej & Boyce and various High Court/Tribunal rulings) requiring AO's recorded satisfaction before applying Rule 8D; Tribunal's earlier decisions in assessee's own case for prior years were relied on to the same effect. Interpretation and reasoning: The Court examined the assessment order and found no objective satisfaction recorded by the AO challenging the assessee's suo-moto working. The Bench reasoned that primary responsibility to compute any disallowance lies with the assessee and where the assessee has furnished a suo-moto disallowance supported by accounts, the AO must verify and record reasons (satisfaction/dissatisfaction) based on accounts before resorting to the Rule 8D prescribed formula. Mere reiteration of earlier observations or mechanical application of Rule 8D without addressing the assessee's scientific/financial grounding does not meet the statutory requirement. Ratio vs. Obiter: Ratio - AO must record objective satisfaction, with reasons 'having regard to the accounts of the assessee', before applying Rule 8D to replace a suo-moto disallowance. Obiter - observations on nature of market-related costs and need for approximate valuation were supportive but factual. Conclusions: Disallowance under section 14A by invoking Rule 8D in absence of recorded satisfaction is impermissible; disallowance limited to assessee's suo-moto amount. (Cross-reference: Issue 2 as to scope of investments to be considered when computing disallowance.) Issue 2 - Securities held as stock-in-trade: legal framework Legal framework: Section 14A and Rule 8D; distinction between 'investment' and 'stock-in-trade' affects whether Section 14A applies to income incidentally arising from trading stock (e.g., dividend/interest). Precedent treatment: Followed Supreme Court rulings (Maxopp Investment Ltd., South Indian Bank Ltd.) and CBDT circulars recognizing that where shares are held as stock-in-trade (particularly by banks), disallowance under section 14A may not be attracted for those shares; Tribunal and High Court decisions corroborate exclusion of stock-in-trade from Rule 8D computation. Interpretation and reasoning: The Court accepted that where financial statements clearly reflect securities as stock-in-trade, those holdings are part of business stock and the incidental exempt income does not trigger section 14A disallowance as if they were investments to earn exempt income. The Bench noted that the Maxopp line distinguishes cases where shares are held as trading stock (main purpose: profit on sale) from those held as investments (e.g., to retain control), and that Rule 8D computations should exclude stock-in-trade balances. Ratio vs. Obiter: Ratio - securities held as stock-in-trade and so reflected in accounts are to be excluded from the base for Rule 8D disallowance computations. Obiter - discussion of the dominant-intention test was noted as rejected by the Supreme Court. Conclusions: AO's direction to include stock-in-trade for Rule 8D computation was set aside; shares held as stock-in-trade must be excluded. (Cross-reference: Issue 1 - exclusion affects the base to which Rule 8D would apply if AO validly invoked it.) Issue 3 - Deductibility of CSR spend under section 80G Legal framework: Section 80G permits deduction for donations to specified entities subject to conditions; Companies Act s.135 mandates certain companies to spend on CSR; Explanation 2 to s.37(1) (Finance Act (No.2), 2014) disallows CSR as business expenditure. Precedent treatment: The Tribunal and several coordinate benches have held that mandatory CSR spend may still qualify for deduction under s.80G if the donee is registered under s.80G and other statutory conditions are satisfied (cited Tribunal decisions and Special/Coordinate Bench rulings). The Court observed that Parliament amended s.37 to exclude CSR from business deduction but did not similarly amend s.80G to bar such donations. Interpretation and reasoning: The Bench reasoned that s.80G operates after computation of gross total income; disallowance under s.37(1) (i.e., Explanation 2) does not preclude claiming s.80G deduction if statutory conditions for s.80G are met. Voluntariness was considered: mandatory CSR does not necessarily negate the character of the payment as a 'donation' within s.80G where there is no reciprocal benefit and donee is eligible; legislative intent behind Explanation 2 is to prevent CSR being treated as business expense, not to deny s.80G relief where conditions are fulfilled. Ratio vs. Obiter: Ratio - CSR payments that meet the conditions of s.80G are eligible for s.80G deduction despite being mandatory under Companies Act; AO must verify donee's registration and compliance with s.80G conditions. Obiter - policy considerations about government subsidy effect were discussed but not decisive. Conclusions: The appellate authority's allowance of s.80G deduction for CSR donations (subject to factual verification of donee's s.80G registration and conditions) was upheld; Revenue's contrary plea dismissed. Issue 4 - Deductibility of ESOP discount under section 37(1) Legal framework: Section 37(1) allows deductions of revenue expenditures 'wholly and exclusively laid out' for business; ESOP discounts involve difference between grant/exercise price and market value, and employees are taxed on perquisite in their hands. Precedent treatment: Tribunal and High Court decisions (including Biocon Ltd. (Karnataka HC), IPCA Laboratories, Nagarjuna Construction, and others) have held ESOP discount can be allowable under s.37(1) where facts show revenue nature and disclosure is made; some High Court appeals were pending in cited authorities but multiple Tribunal benches consistently accepted deduction where scheme details are disclosed and expense crystallizes on exercise. Interpretation and reasoning: The Bench noted that ESOP expense was disclosed in annual report, details furnished during assessment, and claimed at time of actual exercise (not merely contingent). The Court examined precedents and found the weight of authority supports allowing ESOP discount as a revenue deduction under s.37(1) when options are exercised and perquisites taxed in employees' hands. The Court rejected the AO's characterization as capital/contingent where there is factual disclosure and crystallization. Ratio vs. Obiter: Ratio - ESOP discount, when specifically disclosed, crystallized on exercise, and evidenced in accounts, is allowable under s.37(1) as revenue expenditure; Departmental appeals in comparable years having been decided for the assessee strengthen the position. Obiter - reference to contingent nature absent when exercise occurs. Conclusions: The appellate authority correctly allowed ESOP deduction; Revenue's appeals on this ground dismissed and the deduction sustained. OVERALL CONCLUSION (cross-references) 1. For Issues 1 and 2: In cases where assessee has made a suo-moto disallowance, AO may apply Rule 8D only after recording an objective dissatisfaction 'having regard to the accounts'; securities shown as stock-in-trade are excluded from Rule 8D base. Consequently, disallowance limited to assessee's suo-moto amount and stock-in-trade excluded (see Issues 1 & 2). 2. For Issue 3: CSR payments meeting s.80G conditions are deductible under s.80G despite statutory CSR obligation under Companies Act, subject to verification of donee's registration and other statutory conditions. 3. For Issue 4: ESOP discount, when disclosed and crystallized on exercise, is a revenue deduction under s.37(1); departmental challenge dismissed.