HDFC Bank Limited vs. DCIT (ITAT Mumbai)

DATE: September 23, 2015 (Date of pronouncement)
DATE: October 8, 2015 (Date of publication)
AY: 2008-09
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S. 14A/ Rule 8D: (i) Presumption laid down in HDFC Bank 366 ITR 505 (Bom) and Reliance Utilities 313 ITR 340 (Bom) that investments in tax-free securities must be deemed to have come out of own funds and (ii) Law laid down in India Advantage (Bom) that s. 14A and Rule 8D does not apply to securities held as stock-in-trade cannot be applied as both propositions are contrary to Godrej & Boyce 328 ITR 81 (Bom)

In AY 2008-09, the assessee claimed that no disallowance u/s 14A and Rule 8D could be made on the basis that (i) the tax-free investments were made out of interest-free funds and not out of borrowed funds and (ii) the tax-free investments were held as stock-in-trade. In support of the submissions, the assessee relied on CIT vs. HDFC Bank Ltd [2014] 366 ITR 505 (Bom) (its own case) and CIT vs. India Advantage Securities Ltd. (in IT Appeal No. 1131 of 2013 dated 13.04.2015. HELD by the Tribunal rejecting both contentions:

(i) The assessee has before us also relied on the decision in its own case reported at [2014] 366 ITR 505 (Bom). The said decision stands rendered following the decision by the hon’ble court in CIT vs. Reliance Utilities and Power Ltd [2009] 313 ITR 340 (Bom). The said (latter) decision stands in fact duly considered by the Hon’ble jurisdictional High Court in Godrej & Boyce (supra). It was clarified by it that the said decision was rendered on a finding of fact by the tribunal that there were sufficient interest-free funds available (para 86). The decision in HDFC Bank Ltd. (supra) is again rendered on the basis of the facts of the case as being covered by the judgment in Reliance Utilities and Power Ltd. The question, with respect, as explained in Godrej & Boyce (supra), is not of the availability of the funds per se, but whether it could be said that it was only these funds that had gone to fund the relevant investments, i.e., in view of the statutory presumption cast by section 14A. The decision in the case of Reliance Utilities and Power Ltd. (supra), it must be appreciated and noted, is in context of section 36(1)(iii), the parameters of which are different. Further, in the facts of that case, even as explained by its counsel in HDFC Bank Ltd. (supra), the company was able to show that the investments with reference to which the disallowance u/s.36(1)(iii) was sought to be made by the Revenue were strategic investments in two companies of the same group, out of self generated funds. The utilization of borrowed capital was shown as utilized toward capital expenditure and inter-corporate deposits, both yielding taxable income, so that no part of the interest bearing funds had gone in the investment of the said two companies. In fact, the hon’ble court in Godrej & Boyce (supra) goes to the extent of stating that the fact that the assessee has utilized its own funds in making the investments would not be dispositive of the question of whether the assessee has incurred the expenditure in relation to earning such (tax-free) income. Even if, therefore, it had utilized its own funds for making investment which had resulted in income not forming part of the total income under the Act, the expenditure which is incurred in earning the income would have to be disallowed. The matter stands duly discussed, reproducing the relevant part of the said decision, i.e., in Godrej & Boyce (supra), both in D. H. Securities (P) Ltd. and Damani Estates & Finance (P.) Ltd. We have already noted the inability of the assessee to exhibit the exact funding of the tax-free investments under reference, acquired over the years in the course of its business, so that in the absence of leading evidence toward the same with reference to its accounts, as provided u/s.14A(2), the disallowance u/s. 14A(1) r/w rule 8D shall hold. It may be noted that this was precisely the fact situation in Dhanuka & Sons, leading the Hon’ble Court to, following Godrej & Boyce, uphold the invocation of rule 8D. We may clarify that we are conscious that the decision by the Hon’ble jurisdictional High Court is binding on us, so that the issue before us reduces to ascertaining as to which of the two decisions by the Hon’ble jurisdictional High Court, i.e., in the case of Godrej & Boyce or HDFC Bank Ltd, is to be followed. We have already clarified that the decision in the latter case was based on the finding of a parity of facts with the decision in the case of Reliance Utilities and Power Ltd. We are unable to issue any finding qua the facts of the present case, i.e., other than as to the securities under reference being acquired over a period of time and, further, from the common pool of funds, accessed and generated, as available with it at the relevant time. No doubt, the bulk of investments are acquired by the assessee as a successor in business. The same, rather, further endorses the said finding; the assessee-bank acquiring these assets, along with other assets and a range of liabilities, as a successor-in-business. Again, the said decision, unlike in the case of Godrej & Boyce, does not dilate on the scope and parameters of section 14A, but considers the ratio arising out of the decision in the case of Reliance Utilities and Power Ltd., which is in the context of section 36(1)(iii) and, even more importantly, considered in Godrej & Boyce. In view of the foregoing, the same becomes distinguishable, so that we decide the issue following the binding decision in the case of Godrej & Boyce, as found and explained by the tribunal in the case of D. H. Securities (P.) Ltd, a decision by its larger constitution.

(ii) In our view, it was incumbent on the parties to have brought its’ decision in the case of Godrej & Boyce to the notice of the Hon’ble Court in HDFC Bank Ltd.. We are conscious that we are deciding an appeal in the case of the same assessee. So, however, we are deciding a purely legal issue, i.e., whether, in view of the statutory presumption cast by section 14A, a non obstante provision, a presumption on facts could obtain, or that the assessee shall have to establish the same with reference to its accounts, in terms of section 14A(2) r/w s. 14A(3), leading to a satisfaction or otherwise of the assessing authority, arrived at objectively, only to find the earlier decision in Godrej & Boyce (supra) as having addressed the said issue. Further, that the facts in Reliance Utilities and Power Ltd., which was even otherwise in respect of allowance of expenditure u/s.36(1)(iii) – a provision which does not mandate any apportionment per se, stood established, with in fact the said decision having been considered in Godrej & Boyce. As such, there being no estoppel against law, we consider ourselves as legally justified in following the said decision by the Hon’ble jurisdictional High Court, address as it does, in our opinion, the issue at hand, and is thus squarely applicable, even as found in Dhanuka & Sons (supra), D. H. Securities (P) Ltd. (supra); and Damani Estates & Finance (P.) Ltd. (supra). These also constitute the binding reasons for not following the decision by the tribunal in Dy. CIT (OSD) vs. Shri Durga Capital Ltd. (in ITA No. 7405/Mum/2011 dated 03.08.2015/copy on record), also relied upon before us, in-as-much as we find no statement of law ascribed to India Advantage Securities Ltd. (supra); the Hon’ble Court therein holding the appeal before it to not raise any substantial question of law. Further, there is, no reference to the binding decision by the Hon’ble jurisdictional High Court in Godrej & Boyce (supra), or by the tribunal in D. H. Securities (P) Ltd. (supra) as well as Damani Estates & Finance (P.) Ltd. (supra), explaining the said decision, as well as its bearing on the decision by the larger bench of the tribunal in Daga Capital Management Pvt. Ltd. (infra), in Shri Dura Capital Ltd. (supra).

(iii) Dividend income, in the case of a dealer in shares, as afore-noted, is of the same species as the share trading income, arise as it does from the same principal activity of trading in shares, which yields two types of income, i.e., the profit on the purchase and sale of shares, and by way of dividend income on the shares held as stock-in-trade for the time being. Like-wise, for a bank (or any other assessee) who may deal in shares or other tax-free investments as a part of its regular business activity. The same composite business yielding two streams of income, taxable and tax-exempt, apportionment of the expenses of the business would be required to be made in terms of sec. 14A r/w r. 8D, which rule is mandatory from the current year. Not so doing would be to defeat and, rather, contrary to the clear mandate of section 14A. On what basis, one may ask, could the expenses of the business be attributed only to one stream of income thereof? The issue of apportionment gets settled per Walfort Share and Stock Brokers P. Ltd. (supra), even as noted in Godrej & Boyce, both binding precedents for us, and it is therefore immaterial whether the shares are held as investment or stock-in-trade, both being assets of a composite business giving rise to two sets of income. This also represents the view of the tribunal per its larger bench decision in Daga Capital Management Pvt. Ltd. (supra), which stands impliedly approved by the Hon’ble Court in Godrej & Boyce (supra), as well as the reading of the said decision per other decisions noted here-in-before. Unless, therefore, a decision by a larger Bench of the Hon’ble jurisdictional High Court, taking a different view, is brought to our notice, we are legally obliged to follow the same. The decision in India Advantage Securities Ltd. clarifies, in sum and substance, of no substantial question of law arising per the said appeal. In fact, a statement of law, if any, that can be said to be issued by the Hon’ble Court, is when it states that one can at best disallow the expenses which are incurred for earning dividend income, at para 4 of its decision, clearly an unqualified observation. No doubt, it mentions of investments, but that by itself does not mean to the exclusion of others where the same also give rise to dividend income. In fact, the Hon’ble Court approves the disallowance u/s.14A at 10% of the dividend income, i.e., a measure independent and, in any case, different from ‘investment’. It is even otherwise settled law that it is neither desirable nor permissible to pick out a word or sentence from the decision and read it to be the ratio of the decision, which alone, being the pronouncement of law, is binding, and is absent in-as-much as the Hon’ble Court unequivocally states of no question of law arising per the said appeal. The disallowance, thus confirmed, is without reference to rule 8D, which only bears the word ‘investment’ – in the context of valuation – and, accordingly, the tribunal’s decision in India Advantage Securities Ltd. (supra) must also be considered as having been rendered in the facts of the case and not as not laying down any proposition of law. In fact, the same also does not consider the decision by the Hon’ble jurisdictional High Court in Godrej & Boyce, followed by us, for the reasons afore-stated, also explained by the tribunal per its other decisions, including by its larger constitution.

3 comments on “HDFC Bank Limited vs. DCIT (ITAT Mumbai)
  1. Appreciating the task before ITAT, I have to say conflict of high court or other decisions are definitely different from conflict of sections with in the same statute.

    Anyone as tax payer would rely on sections of the statute only and he would not scout for various ITAT, or High court or Supreme court decisions as it is presumed under law every section is duly filtered by various decisions of courts or tribunals.

    The statute always need be direct and simple so that taxpayer is not over burdened by various decisions, so in that context I would say as a Tax law analyst, read with Indian constitution Art 265, it should be made mandatory on the revenue that it shall not play meaningless havoc on tax payers just because the revenue’s ignorance of right application of sections.

    What I drive at is law makers’ law making need necessarily imply that they should make tax law and sections very direct and simple, so that tax payers moneys are wasted by meaningless hide and seek propositions by revenue, besides the revenue need appreciate courts time is indeed highly valuable for the country and its people and that time cannot be squandered like.

    In fact, the tribunal discussion is really scholarly need to be noted by one and all.

    You cannot waste the ITAT tribunal time, that is happening just because revenue misreads provisions and affects the time and money which is indeed scarce to any anywhere world over.

    One misread is enough to consume years of tribunals as also courts time that is luxury of waste of time and money both of the tax payer(s) as also the national exchequer.

    In the circumstance, I note here the hon tribunal rightly recorded any high court decision just does not cause ‘ estoppel’ on the court, that way only later and recent decisions play the functional role, unless larger benches of the court or the hon supreme court holds a different view.

    True, when your statue is poorly made it becomes dicey and makes all the more if there are conflicts in the various sections of the very statute, as a conflict of law.

    When the statute sections have several permutation and combinations, the liability is on the law maker, to make it easy read of sections, then the tax payer also would not play with confused revenue.

    Always confused reads lead to more confusions and confusions get confounded..

    India advantage securities case holds the position here, and that way question of law proposition is countered by hon tribunal unless there are any larger benches raison’ de ethre decisions with any other ‘ratio’ surfaces, is my humble opinion.

    again i appreciate the hon tribunal’s effort to be highly logical, but one needs to know law need not necessarily logical, if it could prove a different proposition.

    that way in USA Security Exchange Commission appointed investigation did right job on Goldman sachs issue due to ‘subprime’ issue of 2008-09.

    indeed Wall Street failed in its public utility duty, in the interest of its own profitability it looked for without realizing what its own role is; so the investment banks played with that way buy side and sell side had landed in serious problems…i am posting an article on sub prime how it badly affected the economy world over yet not settled economic issues of the world. thanks

  2. Facts of the case might also possibly become a question of law, depending upon how the revenue interprets its own statutory sections.

    Possibly sooner or later India Revenue and Indian stock markets, why Indian investment bankers might cause some packages that might be sooner or later Indian subprime, if care is not taken as every one needs profitability many players being utilities only on India.

    Therefore it is high time India Law makers should forthwith make meaningful taxation statute procedure code to control the vague way finance Acts are made affecting the Revenue not properly appreciating the complicated structure indian tax system of administration, which instead of helping meaningful governance, and its projects, it would simply torpedo .
    See what ‘aadhar’ unique identification number generation with the idea of biometric invaded into private domain of any individual.

    Besides that aadhar just gobbled the tax payers’ hard earned moneys paid in taxes to government, all the world knows.

    you need to function carefully as a public utility, if you fail you would hang innocent millions, every government need to appreciate.

    indeed court its job in an exemplary way, and yet i would recommend to judicial review courts – high courts, apex courts need to use doctrine of severability of sections if they are meaningless or affects illegally per se constitution of India fundamental rights provisos, as also Part IV, IVA,and thus ensure art 265 is in strict command on the tax administration and thus revive adequately art 14 to be effective to reign in the governments, when governance go haywire is my humble submission as an advocate in Indian judicial system, as a court officer.

  3. Sher Singh says:

    So Now, it has come to the point that High Court decisions in ‘OWN’ case are not being followed by the ITAT if bench consists of certain members despite facing the rap by High Court. Wow! We have a president of ITAT who is afraid of sitting in courtroom. We have a VP who meets counsels privately. Easy Justice! Quick Justice!

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