Thursday 17 February 2022

Amendments in Section 14A which has nullified (overruled) the well-settled judgements/judicial pronouncements of the hon’ble Supreme Court

Section 14A was introduced by the Finance Act, 2001, with retrospective effect from 01.04.1962 to overcome judgments of the Supreme Court in case of CIT v. Indian Bank Ltd. (1965) 56 ITR 77 (SC) in which interest on tax free bond was exempted, CIT v. Maharashtra Sugar Mills Ltd. 1973 CTR (SC) 489 : (1971) 82 ITR 452 (SC) (agricultural income in course of business of sugar mill was fully exempted under Income Tax Act) and Rajasthan Warehousing Corpn. Vs. v.  CIT 242 ITR 450 (SC) [full exemption under section 10(29) was allowed. In these cases exempted income were derived in course of business of and there was no tax in any other manner direct or indirect or on some other party who paid such income.

Memorandum explaining the introduction says:

“………exemptions to certain categories of income are Lunawat & Co used to reduce the tax payable on non‐exempt income by debiting expenses incurred to earn the exempt income against taxable income. This is against the basic principle of taxation whereby only net income is taxed….Expenses incurred can be allowed only to the extent they are relatable to the earning of taxable income.”

According to the intention of the Legislature is clearly evident from the memorandum explaining the provisions contained in the Finance Bill wherein it was explained that only those expenses could be claimed as deduction which are incurred in relation to earning the taxable income. The use of the expression “only to the extent” in the memorandum is clear indicator that only that part of expenses can be allowed as deduction which is related to the earning of taxable income.

Text of Section 14A

EXPENDITURE INCURRED IN RELATION TO INCOME NOT INCLUDIBLE IN TOTAL INCOME.

14A. (1) 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.

(2) The Assessing Officer shall determine the amount of expenditure incurred 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 prescribed63, 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.

(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 :

Provided that nothing contained in this section shall empower the Assessing 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.

 

Overruled judicial pronouncements of the Hon’ble Supreme Court:

 

In case of an indivisible business, some income wherefrom is taxable while some exempt, entire expenditure would be permissible deduction even if some of the activities may yield tax free income and the principle of apportionment would apply only for an indivisible business

In this case, the assessee claimed deduction of expenditure of Rs. 38.14 lakhs under section 37 of the Act in computing its income under the head “Profits and gains of business or profession’. The ITO allowed only so much of the expenditure as could be allocated to the taxable income and disallowed the rest of it, which was referable to the non-taxable income, exempt under section 10(29) of the Act. It was held that in view of the fact that income from various ventures was earned in the course of one indivisible business, the impugned order upholding the apportionment of the expenditure and allowing deduction of only that proportion of it which was referable to the taxable income, was unsustainable. The Apex Court has laid down certain principles in this connection. The same are to be found on page 455 of the Report and they are reproduced as follows:

(i)               if income of an assessee is derived from various heads of income, he is entitled to claim deduction permissible under the respective head whether or not computation under each head results in taxable income;

(ii)             if income of an assessee arises under any of the heads of income but from different items, e.g., different house properties or different securities, etc., and income from one or more items alone is taxable whereas income from the other item is exempt under the Act, the entire permissible expenditure in earning the income from that head is deductible; and

(iii)           in computing “profits and gains of business or profession” when an assessee is carrying on business in various ventures and some among them yield taxable income and the others do not, the question of allowability of the expenditure under section 37 of the Act will depend on:

(a) fulfilment of requirements of that provision noted above; and

(b) on the fact whether all the ventures carried on by him constituted one indivisible business or not; if they do, the entire expenditure will be a permissible deduction but if they do not, the principle of apportionment of the expenditure will apply because there will be no nexus between the expenditure attributable to the venture not forming an integral part of the business and the expenditure sought to be deducted as the business expenditure of the assessee.” – [Rajasthan State Warehousing Corporation v. CIT (2000) 242 ITR 450 (SC)]

 

Agricultural income in course of business of sugar mill was fully exempted under Income Tax Act - Entire commission paid to managing agents was allowable as deduction

Section 37(1) of the Income-tax Act, 1961 [Corresponding to section 10(2)(xv) of the Indian Income-tax Act, 1922], read with rule 23 of the Indian Income-tax Rules, 1922 - In this case, the assessee company owned extensive lands on which it grew sugar-cane and used the sugar-cane for manufacture of sugar in the factory. The ITAT found that the cultivation of sugar-cane and manufacture of sugar by the assessee constituted one single and indivisible business. The assessee company was managed by the managing agents. The managing agents were paid remuneration in accordance with the Agreement entered into between the assessee company and the managing agents. The managing agents’ commission roughly worked out at 10% of the profits of the company. In the assessment year in question, the managing agents were entitled to a commission of Rs. 4,86,228/-. Out of that sum, the ITO disallowed a sum of Rs.1,26,359/- on the ground that the same relates to the commission of the managing agents for managing the sugar-cane cultivation part of the business, income from which was exempt from tax as agricultural income. It was held by the Apex Court that the entire managing agency commission was laid out or expended for the purpose of the business carried on by the assessee and was allowable under section 10(2)(xv) of the Income-tax Act, 1922. The fact that the income from a part of the business was not exigible to income-tax under the Act was not a relevant circumstance. It was further held that if the allowance claimed is permissible under the Act then the same has to be deducted from the gross profit. (Related Assessment year : 1957-58) – [CIT v. Maharashtra Sugar Mills Ltd. (1971) 82 ITR 452 (SC)]

 

Interest on borrowings for acquiring tax-free securities held to be allowable 

In this case, the assessee, in the course of its banking business, invested a large sum in securities, including securities the interest on which was exempt from tax. The bank claimed a deduction of Rs. 25.92 lakhs as interest paid to various depositors. The ITO, the AAC and the ITAT disallowed interest amounting to Rs. 2.80 lakhs. This amount was arrived at by calculating the proportionate interest which would be payable on the money borrowed for the purchase of Mysore Government securities for Rs. 250 lakhs, the interest relating to the income, which was exempt from tax. It was held by the Apex Court that the interest paid by the assessee on moneys borrowed from its various depositors had to be allowed in its entirety and there was no warrant for the disallowance of a proportionate part of the interest referable to moneys borrowed for the purchase of securities whose interest was tax-free.[CIT v. Indian Bank Ltd. (1965) 56 ITR 77 (SC)]

 

  

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