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2016 (4) TMI 962 - AT - Income TaxDisallowance u/s 14A - Held that - Identical issue had arisen in the earlier year as find that the AO had not mentioned as to how much expenditure was incurred by the assessee for earning tax free income. We are of the opinion that if the assessee had not incurred any expenditure to earn tax free income then the AO cannot invoke the provisions of section 14A r. w. Rule 8D of the Rules. First of all the AO has to record his satisfaction about invoking the provisions and has to decide the issue after obtaining the explanation of the assessee . We also do not endorse the view of the FAA that investment out of the own funds has no relevance for making the disallowance. We find that in the case of Om Prakash Khaitan (2015 (7) TMI 785 - DELHI HIGH COURT ) the Hon ble Delhi High Court has held that in order to disallow the expenditure there must be a nexus between the expenditure incurred and the income not forming the part of the total income. - Decided in favour of assessee. Disallowance of ESOP expenses - Held that - Identical issue had arisen in the earlier year as held that stock options of the parent company were offered to the employees of the assessee company that the assessee had made payment to the parent company that during the year FBT was paid. In our opinion once a stock option is granted to and exercised by the employee of an assessee the liability in that behalf is ascertained and cost is allowable in the year in which stock options are granted. We find that in the case of Novo Nordisk India Pvt. Ltd. (2013 (11) TMI 218 - ITAT BANGALORE ) it has been held that in terms of ESOP if an assessee offers shares of its parent company to its employees the difference between the FMV of the shares of the parent company on date of issue of shares and the price at which those shares were issued by the assessee to its employees had to be regarded as expenditure incurred for business purposes allowable u/s. 37(1) of the Act. - Decided in favour of assessee. Buy back of shares - colourable device for the purpose of avoiding dividend distribution tax - Held that - Transaction in question would not fall under the category of colourable device. If an assessee enters into a deal which does not violate any provision of the Act of applicable to a particular AY. the deal cannot be termed a colourable device if it result in non-payment or lesser payment of taxes in that year. The whole exercise should not lead to tax evasion. Non-payment of taxes by an assessee in given circumstances could be a moral or ethical issue. But for that the assessee cannot be penalised. - Decided in favour of assessee.
Issues Involved:
1. Disallowance under Section 14A of the Income Tax Act, 1961. 2. Disallowance of ESOP expenses. 3. Buyback of shares and its tax implications. Issue-wise Detailed Analysis: 1. Disallowance under Section 14A of the Income Tax Act, 1961: - The assessee challenged the disallowance of ?3,45,910 made under Section 14A of the Income Tax Act, 1961. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld this disallowance. - The assessee argued that the disallowance under Section 14A can only be made if there is an actual nexus between tax-free income and expenditure, which was not established in this case. - The Tribunal found that the identical issue had been decided in favor of the assessee in the earlier year (ITA No. 5152/Mum/2012 for AY 2008-09). The Tribunal noted that the Assessing Officer (AO) had not recorded satisfaction about the expenditure incurred for earning tax-free income and had mechanically applied the provisions of Section 14A read with Rule 8D. - The Tribunal concluded that if the assessee had not incurred any expenditure to earn tax-free income, the AO could not invoke the provisions of Section 14A read with Rule 8D. The Tribunal reversed the order of the CIT(A) and decided the issue in favor of the assessee. 2. Disallowance of ESOP expenses: - The assessee contested the disallowance of ESOP expenses amounting to ?52,08,592. The CIT(A) had confirmed this disallowance. - The Tribunal noted that the issue was covered by the order of the Tribunal for the earlier year (ITA/5152/Mum/2012 dated 31.03.2016). - The Tribunal found that the stock options of the parent company were offered to the employees of the assessee company, and the assessee had made payment to the parent company. - The Tribunal referred to the case of Novo Nordisk India Pvt. Ltd., where it was held that the difference between the fair market value of the shares and the price at which they were issued to employees is allowable as business expenditure under Section 37(1) of the Income Tax Act. - Respectfully following the earlier decision, the Tribunal allowed the appeal of the assessee regarding ESOP expenses. 3. Buyback of shares and its tax implications: - The AO held that the buyback of shares by the assessee was a colorable device to avoid dividend distribution tax (DDT). The CIT(A) disagreed with the AO and allowed the appeal of the assessee. - The Tribunal noted that the issue was covered by the decision in the case of Goldman Sachs (India) Securities Pvt. Ltd. (ITA/3726/Mum/2015 for AY 2011-12). - The Tribunal elaborated that the buyback of shares cannot be equated with the reduction of capital. The Tribunal referred to the provisions of Section 77A of the Companies Act and Sections 2(22)(d) and 46A of the Income Tax Act, concluding that buyback of shares and reduction of share-capital are different concepts. - The Tribunal emphasized that the profit arising out of the buyback of shares should be taxed under the head 'capital gains' and not as deemed dividend. - The Tribunal also referred to the Finance Minister's speech and CBDT Circular No. 779, which clarified that on buyback of shares, shareholders would only be liable to capital gains tax and not dividend tax. - The Tribunal concluded that the buyback transaction was not a colorable device and was in accordance with the law. Consequently, the Tribunal decided in favor of the assessee and against the AO. Conclusion: - The appeal filed by the assessee was allowed, and the appeal of the AO was dismissed. The Tribunal's order pronounced that the disallowance under Section 14A and ESOP expenses were to be reversed, and the buyback of shares was not a colorable device to avoid DDT.
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