2025 (11) TMI 469 - AT - Income Tax

Revision under section 263 quashed: patent-error standard limits reappreciation; ESOP discount allowed as business expense under s.37(1)

ITAT MUMBAI - AT held that the Principal Commissioner's invocation of section 263 was unsustainable and quashed the revision. The revisional power under ... Revision u/s 263 - allowability of deduction towards Employee Stock Option Plan (ESOP) expenditure - foundation of “prejudice to the Revenue” - HELD THAT:- The jurisdiction under section 263 is confined to correcting patent errors causing prejudice to the Revenue; it does not confer upon the Principal Commissioner an appellate authority to reappreciate evidence or to substitute his view for that of the Assessing Officer. Explanation 2 to section 263 empowers the revisional authority only where there is an absence of enquiry or verification. It does not authorise the reopening of assessments on grounds of alleged inadequacy of enquiry. In the present case, the exhaustive and documented enquiries made by the AO leave no scope for such inference. Even the foundation of “prejudice to the Revenue” constructed by the Principal Commissioner crumbles upon scrutiny. His entire premise that the assessee recovered Rs. 58.02 crores as reimbursement of ESOP cost is founded on factual misconception. The ledger accounts, financial statements, and TDS reconciliation demonstrate that what was received from EFSL was only the TDS funding—a statutory pass-through for administrative convenience—and not reimbursement of ESOP expenditure. TDS on perquisites is a tax on the employee’s income and its collection or remittance does not extinguish or dilute the employer’s expenditure incurred for compensating the employee. The alleged recovery being illusory, the Revenue’s supposed prejudice is non-existent. Even on merits, the allowability of ESOP expenditure is well settled in law. The ESOP discount represents the monetary value of the obligation incurred by the employer towards its employees in consideration of their services during the vesting period. It is a substitute for direct cash incentive and forms an integral component of the overall remuneration structure. The issuance of shares at a discount involves a real and definite expenditure in the form of an obligation, even if not discharged in cash. The Special Bench in Biocon Limited lucidly held that the difference between the market price on the exercise date and the grant price of shares constitutes allowable business expenditure under section 37(1), and that actual cash outflow is not a precondition for deductibility. The Hon’ble Karnataka High Court [2020 (11) TMI 779 - KARNATAKA HIGH COURT] affirmed this principle, observing that ESOP discount represents consideration for services rendered by employees and is therefore deductible as business expenditure. This ratio has since attained finality, being consistently followed across judicial fora. The Assessing Officer’s acceptance of the claim was, therefore, not merely a possible view but a legally correct and tenable view in conformity with binding precedent. Viewed from every angle jurisdictional, factual, and legal the invocation of section 263 in the present case stands on untenable footing. The revisional assumption based on a mistaken characterization of TDS pass-through as reimbursement of ESOP expenditure is erroneous in fact and in law. The allegation of prejudice is illusory, and even on merits, the ESOP expenditure is an allowable deduction under section 37(1), being employee compensation incurred wholly and exclusively for the purpose of business. Assessee appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the revisional jurisdiction under section 263 can be exercised where the Assessing Officer has conducted detailed enquiry, issued show-cause, considered explanations and documents, and arrived at a reasoned conclusion - i.e., whether there was absence of enquiry or verification as contemplated by Explanation 2 to section 263. 2. Whether the assessment order is 'erroneous' and 'prejudicial to the interests of the Revenue' within the meaning of section 263 where the revisional authority's conclusion rests on a factual premise that amounts received from the holding company were reimbursement of ESOP cost. 3. Whether deduction claimed under section 37(1) for ESOP expenditure (the discount between market price on exercise and grant price) is allowable as business expenditure where (a) shares of the holding company were issued to employees of the assessee under a group ESOP scheme, and (b) TDS on the perquisite was collected centrally by the holding company and subsequently transferred as a pass-through to the assessee. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Scope of Section 263; absence of enquiry or verification Legal framework: Section 263 authorises revision only where an assessment is erroneous and prejudicial to Revenue; Explanation 2 narrows jurisdiction to cases lacking enquiry or verification. Precedent Treatment: The Court treats prior judicial pronouncements as limiting section 263 to patent, jurisdictional defects and to cases where no enquiry was made; it follows the established principle that revision is not an appellate reappreciation of evidence. Interpretation and reasoning: The assessment record shows selection for scrutiny, notices under section 143(2) and 142(1), a detailed questionnaire specifically demanding justification of the ESOP claim, voluminous documentary responses, a further show-cause proposing disallowance, a rejoinder by the assessee, and an assessment order recording examination and acceptance of the claim. These steps demonstrate conscious application of mind and verification by the Assessing Officer. The revisional authority's inference of 'lack of enquiry' is contrary to these documented steps and therefore falls outside the narrow remit of Explanation 2. Ratio vs. Obiter: Ratio - where an assessing officer has issued statutory notices, elicited detailed responses, considered evidence and reached a reasoned conclusion, section 263 cannot be invoked on the ground of absence of enquiry. Obiter - general observations on the limits of revisional power as not being appellate in nature. Conclusion: The exercise of revisional jurisdiction under section 263 on the premise of lack of enquiry was unwarranted; the assessment was not vitiated by absence of verification. Issue 2 - Erroneous and prejudicial assessment: characterization of receipts from holding company Legal framework: For section 263, an assessment is 'erroneous' and 'prejudicial' only if there is a demonstrable factual or legal error affecting tax payable; characterization of receipts affects whether revenue prejudice exists. Precedent Treatment: The Court applies established standards requiring that alleged prejudice be founded on correct facts and not on mischaracterisation; it follows authorities that revision cannot be based on incorrect factual premises. Interpretation and reasoning: The assessment file, audited financial statements, notes to accounts, ledgers and reconciliations show that amounts received from the holding company constituted centralised collection of TDS on perquisites and were transferred as a statutory pass-through for deposit to Government account. The holding company, as issuer and collector, collected TDS centrally and remitted/funded the TDS amounts to subsidiaries for statutory compliance. The total TDS funding was Rs. 25.70 crores, not Rs. 58.02 crores as assumed by the revisional authority. Because the entry was a tax-pass-through and not a reimbursement of ESOP cost, the premise that Revenue suffered prejudice by allowing a reimbursed cost is factually incorrect. Ratio vs. Obiter: Ratio - a revisional order predicated on a demonstrably incorrect factual characterization (TDS pass-through treated as reimbursement) cannot sustain a finding of prejudice to Revenue under section 263. Obiter - remarks on commercial accounting treatment of TDS funding vs. reimbursement. Conclusion: The learned Principal Commissioner's finding of prejudice, grounded on mischaracterisation of receipts, is unsustainable; there was no prejudice to Revenue arising from an alleged reimbursement. Issue 3 - Allowability of ESOP discount under section 37(1) Legal framework: Section 37(1) allows deduction for revenue expenditure incurred wholly and exclusively for business; employee remuneration and substitutes therefor are deductible if they represent expenditure or obligation attributable to business operations. Precedent Treatment (followed): The Court follows a consistent line of appellate authorities holding that the discount between market price on exercise and grant price under ESOPs constitutes deductible business expenditure, being employee remuneration even if discharged by issuance of shares rather than immediate cash outflow. The Special Bench decision and the subsequent High Court affirmation are treated as binding precedent on the proposition that ESOP discount is allowable. Other tribunals and High Courts cited have uniformly sustained the view that ESOP discount is compensation deductible under section 37(1). Interpretation and reasoning: The ESOP scheme was implemented in conformity with regulatory guidelines, employees were granted options to subscribe at a discount, the discount represented monetary value of consideration for services, was taxed as a perquisite in employees' hands, and TDS was deducted. The employer's obligation arising from grant and exercise is a real and definite liability substituting cash incentive and therefore meets the test of expenditure 'wholly and exclusively' for business. The absence of immediate cash outflow is immaterial where the economic obligation is established and the expenditure is correctly reflected in books and supported by documentation and precedent. Ratio vs. Obiter: Ratio - ESOP discount (market price on exercise minus grant price) is deductible under section 37(1) as remuneration for services and does not require actual cash outflow for deductibility. Obiter - application to specific forms of corporate group administration and funding mechanics. Conclusion: The Assessing Officer's acceptance of the ESOP deduction was a legally tenable view in conformity with binding precedent; the deduction is allowable under section 37(1). Cross-relation between Issues The assessment's lawfulness (Issue 1) and absence of prejudice (Issue 2) are intertwined with the substantive correctness of allowing ESOP expenditure (Issue 3). Because the Assessing Officer carried out detailed enquiry and adopted a conclusion consistent with binding precedent that the ESOP discount is deductible and because the receipts from the holding company were TDS pass-through rather than reimbursement, neither the jurisdictional basis for invoking section 263 nor the factual basis for alleged prejudice is sustainable. Final Conclusion (ratio of the Court) The revisional order under section 263 is unsustainable: the Assessing Officer conducted adequate enquiry and applied his mind; the revisional premise that amounts received were reimbursement is factually incorrect; and on merits the ESOP discount is an allowable deduction under section 37(1). Accordingly, the assessment order is restored. (Ratio)