Disallowance u/s. 14A – Expenditure relating to exempt income – Section 14A and Rule 8D of I. T. Rules – A. Ys. 2007-08 and 2008-09 – Disallowance cannot be made if there is no exempt income or if there is a possibility of the gains on transfer of the shares being taxable:

The Tribunal held in this case that disallowance u/s. 14A of the Income-tax Act, 1961 cannot be made if there is no exempt income or if there is a possibility of the gains on transfer of the shares being taxable. On appeal by the Revenue, the Delhi High Court upheld the decision of the Tribunal and held as under:

“i) On the issue whether the assessee could have earned dividend income and even if no dividend income was earned, yet section 14A can be invoked and disallowance of expenditure can be made, there are three decisions of the different High Courts directly on the issue and against the Revenue. No contrary decision of a High Court has been shown to us. The Punjab and Haryana High Court in CIT vs. M/s. Lakhani Marketing Inc. made reference to two earlier decisions of the same Court in CIT vs. Hero Cycles Limited, 323 ITR 518 and CIT vs. Winsome Textile Industries Ltd. 319 ITR 204 to hold that section 14A cannot be invoked when no exempt income was earned. The second decision is of the Gujarat High Court in CIT vs. Corrtech Energy (P.) Ltd. [2014] 223 Taxmann 130 (Guj). The third decision is of the Allahabad High Court in CIT vs. Shivam Motors (P) Ltd;

ii) Income exempt u/s. 10 in a particular assessment year, may not have been exempt earlier and can become taxable in future years. Further, whether income earned in a subsequent year would or would not be taxable, may depend upon the nature of transaction entered into in the subsequent assessment year.

iii) It is an undisputed position that assessee is an investment company and had invested by purchasing a substantial number of shares and thereby securing right to management. Possibility of sale of shares by private placement etc., cannot be ruled out and is not an improbability. Dividend may or may not be declared. Dividend is declared by the company and strictly in legal sense, a shareholder has no control and cannot insist on payment of dividend. When declared, it is subjected to dividend distribution tax;

iv) What is also noticeable is that the entire or whole expenditure has been disallowed as if there was no expenditure incurred by the assessee for conducting business. The CIT(A) has positively held that the business was set up and had commenced. The said finding is accepted. The assessee, therefore, had to incur expenditure for the business in the form of investment in shares of cement companies and to further expand and consolidate their business. Expenditure had to be also incurred to protect the investment made. The genuineness of the said expenditure and the fact that it was incurred for business activities was not doubted by the Assessing Officer and has also not been doubted by the CIT(A).

v) In these circumstances, we do not find any merit in the present appeals. The same are dismissed.”