Remanded

Mfar Hotels and Resorts Private Ltd. v. the Commissioner of Income Tax

Kerala HC14 Oct 2022ITA/58/2020

Case brief

AI extract

What is this about?

Disallowance of expenditure relating to investments in group companies was challenged under Section 14A read with Rule 8D. The Court found the authorities’ findings inadequate and remitted the matter for fresh consideration under Sections 10(34) and 14A, permitting additional evidence.

What did the court decide?

Fresh consideration by the Assessing Officer; liberty to submit additional details or evidence within eight weeks of receipt of the judgment copy.

Mfar Hotels and Resorts Private Ltd. Vs the Commissioner of Income… — Income Tax | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE S.V.BHATTI

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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FRIDAY, THE 14^TH DAY OF OCTOBER 2022 / 22ND ASWINA, 1944

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ITA NO. 58 OF 2020

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AGAINST THE ORDER IN ITA 334/2015 OF I.T.A.TRIBUNAL,COCHIN BENCH APPELLANT:

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MFAR HOTELS AND RESORTS PRIVATE LTD. XVI/263, NH BYE PASS, KUNDANNUR, MARADU., KOCHI 682 304, REPRESENTED BY ITS DIRECTOR, MR. M M ABDUL BASHERR.

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BY ADVS. M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN

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RESPONDENT:

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THE COMMISSIONER OF INCOME TAX C.R. BUILDING, I.S PRESS ROAD, COCHIN 682 018.

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BY ADVS. SRI.P.K.RAVINDRANATHA MENON (SR.) JOSE JOSEPH, SC, FOR INCOME TAX

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THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA No.58/2020

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J U D G M E N T

S.V.Bhatti, J.

We have heard Mr. Raja Kannan learned counsel for the appellant and Mr. P.K. Ravindranatha Menon learned Sr. Counsel for the respondent.

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2. MFAR Hotels and Resorts Private Ltd/assessee is the appellant. The Commissioner of Income Tax, Cochin/Revenue is the respondent. The appeal arises from the order dated

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26.10.2018 in ITA No.334/Coch/2015 of the Income Tax Appellate Tribunal, Cochin Bench, Cochin (for short, the Tribunal’). The appeal deals with the application of Section 14A of the Income Tax Act, 1961 (for short, the Act’) read with Rule 8D of the Income Tax Rules (for short, ‘the Rules’) and disallowing Rs.12,61,890/- from the total expenditure of Rs.1,82,42,553/- for decision. The subject matter relates to the return filed by the assessee for the assessment year 2011-12.

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The appeal raises the following substantial questions of law:

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“i. Whether the Appellate Tribunal is justified in confirming the addition under Section 14A read with Rule 8D, in a case where admittedly no borrowed funds are utilised by the appellant for making investment in the group Companies?

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ii. Ought not the Appellate Tribunal to have held that in the absence of any finding regarding the earning of any exempt income, the addition made under Section 14A read with Rule BD cannot be legally sustainable?

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iii. Whether the Appellate Tribunal is justified in confirming the addition under Section 14A read with Rule 8D, in a case where there is no satisfaction recorded by the assessing authority, prior to applying the theory of apportionment, per the decision of the Hon'ble Supreme Court in Maxopp Investment Ltd., v. CIT, reported in (2018) 402 ITR 640 (SC)?”

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iv. Is not the finding of fact by the Appellate Tribunal erroneous and perverse?

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By the end of financial year 2010-11 the books of the

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assessee reflected investment in the shares of a group or sister

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company of the assessee. According to the assessee, the

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assessee has not made any investment by way of shares in the

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group company of the assessee during the financial year 2010-

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The investments made were in years preceding to the subject financial year. The nature of the investment, according

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to the assessee is a capital contribution to a group company and

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has been made as a corporate strategy for cross-holding. Therefore, the investments made cannot be equated to investments made for earning tax-free income. The interestbearing secured loans availed by the assessee company from the financial institutions and the unsecured loans by way of borrowing as specifically intended for setting up and for the operation of hotel projects of the company. These details are in no way related to the investment made for earning exempt income. The reply given by the assessee to the notice issued by

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the Assessing Officer, as matter of record, does not state whether the investment standing as on 31.03.2011 firstly, has earned any income and secondly, whether it forms part of the exempt income or not. Be that as it may.

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4. The Court during the course of hearing pointed out the deficiency in the reply given by the assessee, Mr. Raja Kannan invited our attention to the ratio laid down by the

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Supreme Court in Kedarnath Jute Manufacturing Co. Ltd v, Commissioner Of Income Tax (Central) Calcutta¹ to argue that the omission is not the decisive factor. In the said judgment the Supreme Court adverting to the argument of the learned Solicitor General that the assessee failed to debit the liability in its books of accounts and therefore, the assessee therein was debarred from claiming the deduction either under Section 10(1) or under Section 10(2) (xv) of the Act; held that it was unable to appreciate the suggestion that if an assessee, under some misapprehension or mistake, failed to make an entry in the books of accounts and although under the law a deduction must be allowed by the Income Tax Officer, the assessee will lose the right of claiming or will be debarred from allowing that deduction. It is further held whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee

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1 (1971) 82 ITR 363 (SC)

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might take of his rights nor can the existence or absence of

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entries in the books of accounts be decisive or conclusive in the

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matter. By referring to the said ratio, Mr. Raja Kannan fairly states that the explanation given by the assessee, no doubt, is an incomplete one and that by itself does not prevent the assessee from availing the deduction if it is otherwise permissible in law. Alternatively, the Assessing Officer is under obligation to examine both the exempt income and also the proportionate expenditure included or should disallow in assessing the net income payable by the assessee for the assessment year. At the very outset, we have referred to the ratio in the Kedarnath Jute Manufacturing Company case, (supra), for the reason that it ought not to be understood that a plea not specifically considered or contended before anyone of the Authorities under the Act, this Court while considering an appeal filed under Section 260A of the Act has considered and decided the substantial questions of law. The ratio is applied to the limited

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extent of knowing whether the Assessing Officer has firstly, determined the exempt income in accordance with law and secondly, applied Section 14A read with Rule 8D of the Rules and disallowed the proportionate expenditure from total

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expenditure claimed by the assessee.

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4. The Assessing Officer vide assessment order dated 28.03.2014 noted that the assessee failed to show that the subject investment has been made from the assessee’s own funds and not from interest-bearing funds. The case of the assessee is that no expenditure was incurred in these investments for earning an exempt income. The reliance placed on the order of the Tribunal in Cheminvest Ltd v. Commissioner of Income Tax² was considered and finally, the Assessing Officer disallowed Rs.12,61,890/- and added to the total income of the assessee. The Commissioner of Income-Tax (Appeals)-I referred to the entire narrative given by the assessee

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2 (2015) 378 ITR 33 (Delhi)

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and also the reasons being with Assessing Officer for disallowing

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Rs.12,61,890/-. Finally, it has been held as follows:

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“1.3 During the course of appeal proceedings, it has been found that the disallowance u/s. 14A, for a sum of Rs.54,01,327/- was also made for the A.Y.2010-11, where the learned CIT(A) has elaborated upon the issue at length, and observed that the investment was made in shares of unlisted associated company as a corporate strategy and as a chief promoter. Since each company in the group is an independent business entity and the assessee, at the same time, has failed to highlight any commercial expediency in making such investment, the A.O. was justified for making disallowance. Further, the disallowance under Rule 8D is justified in view of the CBDT Circular No.5/2014 dated 112-2014.

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1.3.1 As a matter of fact, the issue of investment and the nature thereof, remain the same as that of for the A.Y. 2010-11; the decision of my learned predecessor is being followed because of the fact that the issue has been dealt with quite at a length and has been concluded against the assessee. in view of this, the disallowance made by the A.O is upheld and appeal on this ground is dismissed.”

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The Tribunal in common order dated 26.10.2018 rejected the

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case of the assessee and confirmed the disallowance made by

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the Assessing Officer. For completing the narrative, we find it convenient to excerpt the operative portion of the finding recorded by the Tribunal hereunder:

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“19. After hearing both the parties, we find that the

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Supreme Court in the case of Maxopp Investment Ltd. vs. CIT (402 ITR 640) has observed that the dominant purpose for which investment was made in shares by the assessee is not a relevant factor. The only factor is that dividend income is not taxable. In such circumstances, if expenditure is incurred for earning dividend Income, that much of expenditure proportionate to the dividend income is to be disallowed and cannot be treated as business expenditure. We also refer to the judgment of the Supreme Court in the case of CIT vs. Walfort Share and Stock Brokers P. Ltd. (326 ITR 1), wherein it was held that the basic principle of taxation is to tax the net income, i.e., gross income minus the expenditure and on the same analogy gross income would not form part of the total income, its associated or related expenditure would also not be permitted to be debited against other taxable Income. Being so, in our opinion, expenditure incurred by the assessee for investment in shares in group companies cannot be allowed as deduction and proviso to section 14A r.w. Rule 8D is applicable. Hence, this ground of the assessee for all the assessment years is rejected.”

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Hence the appeal at the instance of the assessee.

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5. Mr. Raja Kannan referring to Section 14 A of the Act

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argues that Section 14A was inserted by the Finance Act 2001 with retrospective effect from 01.04.1962. This Section deals with the exclusion of expenditure incurred in relation to the exempt income of the assessee. Assuming without admitting,

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that the assessee has earned dividend from the investment

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made up to the ending of the financial year 31.03.2011 in the sister companies of the assessee, then the assessee would be receiving dividend declared and distributed to the assessee. The dividend income is exempt by operation of Section 10(34) of the Act. The income earned by way of dividend since is exempt in the computation of the income of the assessee, Section 14A takes care of excluding such of the expenditure incurred by the assessee for earning such exempt income. Section 14A is firstly, attracted only to such of the expenditure incurred by the assessee for earning exempt income. Secondly, if the assessee has not earned exempt income from the investments referred to in the assessment order excluding expenditure from the legitimately allowable expenditure, then the assessee would be made to pay income tax even on the expenditure incurred by the assessee. He invites our attention to Section 14A which reads thus:

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14A. Expenditure incurred in relation to

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income not includible in total income. -(1) Notwithstanding anything to the contrary contained in this Act, for the purposes of computing the total income under this Chapter, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under this Act.

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(2) The Assessing Officer shall determine the amount of expenditure incur red in relation to such income which does not form part of the total income under this Act in accordance with such method as may be prescribed, if the Assessing Officer, having regard to the accounts of the assessee, is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under this Act.

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(3) The provisions of sub-section (2) shall also apply in relation to a case where an assessee claims that no expenditure has been incurred by him in relation to income which does not form part of the total income under this Act:

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Provided that nothing contained in this section shall empower the Asses sing Officer either to reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year beginning on or before the 1st day of April, 2001.

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"Explanation. For the removal of doubts, it is hereby clarified that notwithstanding anything to the contrary contained in this Act, the provisions of this section shall apply and shall be deemed to have always applied in a case where the income, not forming part of the total income under this Act, has not accrued or arisen or has not been received during the previous year relevant to an assessment year and the expenditure has

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been incurred during the said previous year in relation to such income not forming part of the total income.

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5.1 He places reliance on the judgment reported in

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Godrej & Boyce Manufacturing Co Ltd vs. DCIT and another³ . The question considered by the Supreme Court in the said decision is to the admissibility or otherwise of the deduction of expenditure incurred in earning dividend income, which is includable in the total income of the assessee by virtue of the provision of Section 10(34) of the Act. As in force, in the relevant assessment year 2002-03, Section 2 (22) of the Act defines the “dividend” includes ‘any distribution by any company of accumulated profits, whether capitalized or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company’. Comparing the circumstances of the case on hand, Mr. Raja Kannan argues that the dividend from the investment must

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3 (2017) 394 ITR 449 (SC)

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satisfy the definition of Section 2(22) of the Act and according to him, this has not been established by any of the orders. The Supreme Court on the scope and area of operation of Section 14A of the Act has held that the Section 14A as originally enacted by the Finance Act 2011 with effect from 01.04.1962 is in the same form and language as currently appearing in subsection (1) of Section 14A of the Act. Sections 14A (2) and (3) that the assessment order did not mention reasons for excluding the expenditure in question or show any relation to the income earned by the assessee. The requirement is that the assessment order establishes reasonable nexus between the expenditure disallowed and the dividend income received. Mr. Raja Kannan places strong reliance on each one of the reasons excerpted above and juxtaposes the consideration of the requirement of Section 14A right from the Assessing Officer till the confirmation of finding by the Tribunal and commends that none of the orders is satisfying any of the requirements on

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which a view is expressed by the Supreme Court.

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5.2 He next relies on the citation reported in

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Commissioner of Income Tax v. Taikisha Engineering India Ltd⁴ . Taikisha Engineering case is a case which has considered the scope, object, and interpreted Section 14A and held that Section 14A of the Act postulates and states that no deduction shall be allowed in respect of the expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. Under sub-section (2) of Section 14A of the Act, the Assessing Officer is required to examine the accounts of the assessee, and only when he is not satisfied with the correctness of the claim of the assessee in respect of the expenditure in relation to exempt income, the Assessing Officer can determine the amount of expenditure which should be disallowed in accordance with such method as prescribed ie. Rule 8D of the Rules. The Assessing Officer at the first instance,

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4 (2015) 370 ITR 338 (Delhi)

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must examine the disallowance made or the claim of the

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assessee that no expenditure was incurred to earn the exempt income. If, and only if, the Assessing Officer is not satisfied with the accounts, after making reference to the books of accounts, the Assessing Officer is entitled to adopt the method as prescribed in Rule 8D of the Rules. The Delhi High Court referred to Maxopp Investment Ltd v. CIT⁵ and the operative portion reads as follows:

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"Scope of sub-sections (2) and (3) of section 14A Sub-section (2) of section 14A of the said Act provides the manner in which the Assessing Officer is to determine the amount of expenditure incurred in relation to income which does not form part of the total income. However, if we examine the provision carefully, we would find that the Assessing Officer is required to determine the amount of such expenditure only if the Assessing Officer, having regard to the accounts of the assessee, is not satisfied with the correctness of the claim of the assessee in respect of such expenditure in relation to income which does not form part of the total income under the said Act. In other words, the requirement of the Assessing Officer embarking upon a determination of the amount of expenditure incurred in relation to exempt income would be triggered only if the Assessing Officer returns a finding that he is not satisfied with the correctness of the claim of the assessee in respect of such expenditure. Therefore, the

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5 (2012) 347 ITR 272 (Delhi)

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condition precedent for the Assessing Officer entering upon a determination of the amount of the expenditure incurred in relation to exempt income is that the Assessing Officer must record that he is not satisfied with the correctness of the claim of the assessee in respect of such expenditure Sub-section (3) is nothing but an offshoot of sub-section (2) of section 14A. Sub-section (3) applies to cases where the assessee claims that no expenditure has been incurred in relation to income which does not form part of the total income under the said Act. In other words, sub-section (2) deals with cases where the assessee specifies a positive amount of expenditure in relation to income which does not form part of the total income under the said Act and sub-section (3) applies to cases where the assessee asserts that no expenditure had been incurred in relation to exempt income. In both cases, the Assessing Officer, if satisfied with the correctness of the claim of the assessee in respect of such expenditure or no expenditure, as the case may be, cannot embark upon a determination of the amount of expenditure in accordance with any prescribed method, as mentioned in sub-section (2) of section 14A of the said Act. It is only if the Assessing Officer is not satisfied with the correctness of the claim of the assessee, in both cases, that the Assessing Officer gets jurisdiction to determine the amount of expenditure incurred in relation to such income which does not form part of the total income under the said Act in accordance with the prescribed method. The prescribed method being the method stipulated in rule 8D of the said Rules. While rejecting the claim of the assessee with regard to the expenditure or no expenditure, as the case may be, in relation to exempt income, the Assessing Officer would have to indicate cogent reasons for the same.

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5.3 Therefore, the argument is that the orders under

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appeal have firstly, assumed exempt income and have proportionately deducted the expenses. The Allahabad High

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Court in CIT v. Shivam Motors (P) Ltd⁶ held that Section 14A of the Act provides for the purpose of computing the total income under the Chapter, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act. Hence, what Section 14A provides is that if there is any income which does not form part of the income under the Act, the expenditure which is incurred for earning the income is not an allowable deduction. Referring to the facts of the reported cases, it is held that the finding of fact is that the assessee has not earned any tax-free income. In the absence of any tax-free income, the corresponding expenditure could not be worked out for disallowance. The view taken by the Commissioner of Income Tax (Appeals) which has been affirmed by the Tribunal,

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6 (2016) 55 taxmann.com 262 (Allahabad)

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hence does not give rise to a substantial question of law.

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According to Mr. Raja Kannan, the case on hand is a converse illustration to say that without actually finding out whether there is exempt income or not the expenditure is proportionately disallowed.

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5.4 Though a few other decisions are cited at the Bar, we are of the view that the decisions are on the same view taken or excerpted by us in the preceding paragraphs, and hence for brevity, we prefer not to advert to them. Before concluding the argument of Mr.Raja Kannan, we would refer to the judgment reported in Redington (India) Ltd vs. Additional Commissioner of Income⁷ . The concluding argument is that from the very details and entry accepted by the Assessing Officer it would be sufficiently clear that disallowance made by the Assessing Officer is impermissible. He prays for setting aside the disallowance and allowing the expenditure as claimed

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7 (2017) 392 ITR 633 (Mad)

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by the assessee. In the alternative, even if this Court is

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persuaded to apply the ratio laid down by the Apex Court in Kedarnath Jute Manufacturing Co. case (supra), the orders under

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appeal need to be set aside and the matter remitted to the Assessing Officer for consideration afresh particularly, on the exempt income received by the assessee during the financial

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year 2010-11 and secondly, whether the expenditure now booked by the assessee could be disallowed as having been

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earned in any way for earning such exempt income or not.

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6. Learned Sr. counsel Mr. P.K. Ravindranatha Menon

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invites our attention to the assessment order and contends that the assessee has no case in the subject financial year that the assessee has not received exempt income. There is complete silence in the reply filed by the assessee. Secondly, Assessing Officer has noted that evidence is not produced to show that the investment has been made from the assessee’s own funds and

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not from interest-bearing funds. Unless and until the assessee

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establishes these two factors, the assessee cannot be allowed to contend that the assessee also received exempt income in the subject financial year. On the scope and extent of the application of Section 14A, he does not join a serious issue with the argument advanced for the assessee. He invites our attention to the judgment reported in Maxopp Investment Ltd v. CIT⁸ for the proposition that according to Section 14A (1) of the Act, deduction of that expenditure is not to be allowed which has been incurred by the assessee “in relation to income which does not form part of the total income under this Act”. Axiomatically noted it is that expenditure alone that has been incurred in relation to the income which is includable in the total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempt income, then such an expenditure could obviously be treated as not related to the income that is exempted from tax and such

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8 (2018) 402 ITR 640 (SC)

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expenditure would be allowed as business expenditure. To put it differently, such expenditure would then be considered as incurred in respect of other income which is to be treated as part of total income. According to the learned Sr. Counsel, the purpose of investment either for cross-holding or otherwise is not relevant either for the purpose of determining exempt income or the purpose of disallowing the expenditure. Once it remains as a fact that dividend income was received then the expenditure incurred on earning the said dividend income has to be proportionately disallowed.

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6.1 In the case on hand, according to him, the questions now canvassed do not raise a substantial question warranting interference under Section 260A of the Act. Alternatively keeping in perspective, the consistent and overwhelming view taken in the judgments relied on by the counsel for the assessee, it is argued that the Court is convinced that the findings now recorded by the Assessing Officer and finally confirmed by the

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Tribunal do not satisfy the thin requirement of examining whether dividend income is one of the exempt incomes

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included in the financial year or not and if so, what are all the sources from which the investments have been made and what are all the expenses claimed in this behalf and what are the actual expenses to be booked for the subject financial year, are matters for re-verification and the matter as to be remitted to

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the Assessing Officer for reconsideration afresh.

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7. The findings recorded by the Assessing Officer have been independently examined by us and are finally confirmed by the Commissioner of Income Tax (Appeals) and the Tribunal. We would not like to refer to the very findings once again for the purpose of concluding the questions under consideration. Juxtaposing in our perspective, the principles laid down by all the decisions relied on by both parties, we are of the view that the finding recorded by the Assessing Officer does not satisfy the requirement of Section 14A of the Act as has been held by

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the Supreme Court even in the judgment relied on by the Revenue viz. what is important is that the expenditure which has been incurred in relation to the income, which is includable in total income that has to be disallowed. In other words, an expenditure incurred has no causal connection with the exempted income, such an expenditure would obviously be treated as not related to the income that is exempted from tax and such expenditure would be allowed as business expenditure. To wit, such expenditure could be then considered as incurred in respect of other income, which is to be treated as part of the total income, and expenses are allowed.

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7.1 For the view, we are now taking, we do not wish to examine the reasons recorded by the orders under appeal. We are satisfied that the findings recorded by all three authorities do not conform to the judgments relied on not only by the Revenue but also by the assessee. keeping in perspective the principles laid down in the decisions referred to above, and the

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unsustainable conclusions recorded by the Assessing Officer, we

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answer substantial questions in favour of the assessee for

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statistical purposes and against the Revenue and remit the matter to the Assessing Officer for consideration afresh and the issue arising both under Sections 10(34) and 14A read with rule 8D of the Rules. The assessee if so advised, is given liberty by

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enclosing a copy of this judgment to file additional details/evidence in support of its claim within eight weeks from the date of receipt of copy of this judgment.

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The income Tax Appeal is disposed of as indicated above.

S.V.BHATTI

JUDGE

BASANT BALAJI

JUDGE

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APPENDIX OF ITA 58/2020

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PETITIONER’S ANNEXURES

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ANNEXURE A THE TRUE COPY OF THE ORDER OF ASSESSMENT DATED 28.03.2014 ISSUED UNDER SECTION 143(3) OF THE ACT BY THE ASSESSING AUTHORITY FOR THE A.Y. 2011-12.

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ANNEXURE B THE TRUE COPY OF THE ORDER DATED 19.03.2015 ISSUED BY THE COMMISSIONER OF INCOME TAX, APPEALS-1, KOCHI FOR THE A.Y 2011-12. ANNEXURE C THE TRUE COPY OF THE APPEAL MEMORANDUM WITHOUT ANNEXURES), DATED 05.06.2015 FILED BY THE APPELLANT BEFORE THE APPELLATE TRIBUNAL, COCHIN FOR THE A.Y 2011-12.

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ANNEXURE D

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THE TRUE COPY OF THE COMMON ORDER DATED 26.10.2018 ISSUED BY THE INCOME TAX, APPELLATE TRIBUNAL, COCHIN BENCH IN ITA 334/COCH/2015.

Mfar Hotels and Resorts Private Ltd. v. the Commissioner of Income Tax

Case brief

What is this about?

What did the court decide?

Mfar Hotels and Resorts Private Ltd. v. the Commissioner of Income Tax

Case brief

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