2016 (7) TMI 1710 - AT - Income Tax

Disallowance u/s 14A - suo moto disallowance - HELD THAT - There are investments in growth funds from where no dividend income is received. The secured loans are which have been utilised only for the purpose of purchase of vehicles as these where vehicle loans only. Thus in our view prima facie no disallowance u/s 14A is called for. It is further noted that in A.Y. 2009-10 the Tribunal deleted the disallowance vide its order dt 13-3-2016. In A.Y. 201011 also the disallowance made u/s 14A has been deleted. Under these circumstances we find that only suo moto disallowance of Rs.50, 000 should be sustained and balance disallowances hould be deleted. Disallowance of ESOP expenses - difference between the market price and allotment price of ESOPs granted by the assessee company s holding company to the employees of the assessee company - HELD THAT - Once a stock option is granted to and exercised by the employee of the assessee then liability in that option was ascertained and the cost is allowable in the year in which stock options were granted. It is further noted that all the contentions raised by the AO in the assessment order have duly considered by the Tribunal while deciding this issue. It is further noted that no distinction has been brought before us by DR on facts or law. Thus we decide this issue in favour of the assessee. Activity of buy back of shares is a colourable device only for the purpose of avoiding dividend distribution tax - HELD THAT - In this year shares were bought back from same shareholder and all the facts and circumstances and the legal position also remain the same as compared to earlier Thus respectfully following the order of Tribunal for earlier years we find that the Ld. CIT(A) has rightly decided this issue in favour of the assessee by holding that the impugned payment made during the year before us did not amount to deemed dividend and therefore the same was not liable to tax under any provisions including provisions for Dividend Distribution Tax u/s 115O of the Act in view of Indo-Mauritius DTAA. For earlier years we dismiss the appeal filed by the revenue.

Summary

1. ISSUES PRESENTED and CONSIDERED

The legal judgment addresses the following core issues:

• Whether the disallowance under Section 14A of the Income-tax Act, 1961, amounting to Rs. 64,315, was justified.
• Whether the disallowance of ESOP expenses amounting to Rs. 36,74,845 was correctly made, considering the difference between the market price and allotment price of ESOPs granted by the holding company to the employees of the assessee company.
• Whether the buyback of shares should be treated as a dividend distribution, thereby subject to Dividend Distribution Tax (DDT), or if it is a legitimate transaction under the provisions of the Companies Act, 1956, and the India-Mauritius DTAA.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Disallowance under Section 14A

• Legal Framework and Precedents: Section 14A of the Income-tax Act, 1961, deals with the disallowance of expenditure incurred in relation to income that does not form part of the total income under the Act. The relevant rule for computation is Rule 8D.
• Court's Interpretation and Reasoning: The Tribunal noted that the assessee's own funds were significantly higher than the investments made in tax-free securities. Past tribunal orders for the assessment years 2009-10 and 2010-11 had deleted similar disallowances.
• Key Evidence and Findings: The assessee had suo moto disallowed Rs. 50,000, and the Tribunal found that the additional disallowance of Rs. 64,315 was not warranted given the excess of own funds over investments.
• Application of Law to Facts: The Tribunal applied the principle that if own funds exceed investments, no disallowance under Section 14A is justified.
• Treatment of Competing Arguments: The Revenue's reliance on lower authority orders was not sufficient to counter the Tribunal's previous decisions and the evidence of sufficient own funds.
• Conclusions: The Tribunal concluded that only the suo moto disallowance of Rs. 50,000 should be sustained, and the balance disallowance of Rs. 64,315 should be deleted.

Issue 2: Disallowance of ESOP Expenses

• Legal Framework and Precedents: Section 37(1) of the Income-tax Act, 1961, allows deductions for revenue expenditures wholly and exclusively for business purposes. The issue of ESOP expenses was previously addressed in the case of Ranbaxy Laboratories Ltd. vs. Addl. CIT.
• Court's Interpretation and Reasoning: The Tribunal found that the ESOP expenses were a legitimate business expenditure and not a capital loss, as they were in the nature of employee compensation.
• Key Evidence and Findings: The ESOP expenses were taxed as perquisites in the hands of employees, and appropriate tax was deducted. The Tribunal's previous orders supported the allowance of such expenses.
• Application of Law to Facts: The Tribunal applied the principle that ESOP expenses, as compensation costs, are allowable under Section 37(1).
• Treatment of Competing Arguments: The Tribunal distinguished the facts from the Ranbaxy case and relied on its own previous orders favoring the assessee.
• Conclusions: The Tribunal allowed the ESOP expenses amounting to Rs. 36,74,845, reversing the lower authorities' disallowance.

Issue 3: Buyback of Shares and DDT

• Legal Framework and Precedents: Section 2(22)(iv) of the Income-tax Act excludes buyback from the definition of dividend. Section 46A deals with capital gains on buyback. The India-Mauritius DTAA provides tax exemptions for capital gains.
• Court's Interpretation and Reasoning: The Tribunal found that the buyback was a legitimate transaction, not a colorable device to avoid DDT, and was governed by the Companies Act, 1956, and the India-Mauritius DTAA.
• Key Evidence and Findings: The buyback was conducted in compliance with Section 77A of the Companies Act. The Tribunal relied on its previous orders and the case of Goldman Sachs (India) Securities Pvt Ltd.
• Application of Law to Facts: The Tribunal applied the provisions of Section 46A and the India-Mauritius DTAA, concluding that the transaction was not subject to DDT.
• Treatment of Competing Arguments: The Tribunal rejected the Revenue's argument of the buyback being a colorable device, citing compliance with legal provisions and previous judgments.
• Conclusions: The Tribunal upheld the CIT(A)'s decision, confirming that the buyback was not subject to DDT and was a legitimate transaction under the applicable laws.

3. SIGNIFICANT HOLDINGS

• Disallowance under Section 14A: "Prima facie no disallowance u/s 14A is called for." The Tribunal sustained only the suo moto disallowance of Rs. 50,000.
• ESOP Expenses: "The liability in that option was ascertained and the cost is allowable in the year in which stock options were granted." The Tribunal allowed the ESOP expenses as a deductible business expenditure.
• Buyback of Shares: "The remittance made by the assessee to the Mauritius resident was not liable as dividend and further not liable to Dividend Distribution Tax u/s 115-O of the Act." The Tribunal confirmed that the buyback was a legitimate transaction, not subject to DDT.
• Core Principles Established: The judgment reinforced the principles that sufficient own funds negate disallowance under Section 14A, ESOP expenses are deductible as business expenses, and buybacks compliant with legal provisions are not deemed dividends.
• Final Determinations: The Tribunal allowed the assessee's appeal on both disallowance issues and dismissed the Revenue's appeal regarding the buyback transaction.