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Citibank N.A. v. Commissioner Of Income-Tax

Bombay High Court
Mar 5, 2003
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Income Tax Reference No. 5 of 1994 along with Notice of Motion Nos. 2354, 2355 and 2356 of 1994

Attorney(S)

R.V Desai, Senior Counsel with P.S Jetley and Mrs. S.V Bharucha instructed by K.B Rao

For Applicant: J.D Mistry with B.D Damodar instructed by Kanga and Co.

JUDGES

S.H Kapadia

J.P Devadhar, JJ.

ACTS

provisions of sections 30, 31, 36 and 37 [other than clauses (iii), (vi), (vii) and (viia) of sub-section (1) of section

section 28 to section 44-D (which includes sections 36 and 37). Therefore, provisions of section 40-A

section 256(1) of the Income Tax Act

section 20(1)(i), an artificial rule

SECTION 40 FINANCE ACT

section 20(1)(i), section 40-A(5)

provisions of section 40-A(5)

benefit.12. Sub-section (5)

section 40-A(5)(a)(ii).

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Factual and Procedural Background

This Reference arises under section 256(1) of the Income Tax Act by an order of the Tribunal dated 9th October 1991, which referred common questions of law to the Court for opinion. The matters principally concern Assessment Year 1981–1982. Two questions were referred at the instance of the assessee about the tax characterisation of interest arising on sale of Government securities held by the Bank (business income v. interest on securities) and the tax characterisation of discount on treasury bills. Subsequently, at the instance of the Revenue, four additional questions were referred concerning the application of section 40-A(5) to (a) expenditure on repairs and maintenance of flats owned by the assessee used for employee residence, (b) ground rent, rates, taxes and society charges for premises owned by the assessee and used by employees, and (c) the interaction of section 40-A(5) with apportionment rules in section 20(1)(i) and the applicability of restrictions under sections 40-A(3), 40-A(5) and 44-C to expenses apportioned to “Interest on securities.” The Court heard argument and delivered findings addressing these referred questions.

Legal Issues Presented

  1. Whether, on the facts and circumstances of the case, the Tribunal erred in holding that interest received by the Bank on sale of Government securities held by it is assessable to tax as "income from business" and not as "interest on securities"?
  2. Whether, on the facts and circumstances of the case, the Tribunal erred in holding that the discount on treasury bills is assessable as "income from business" and not as "interest on securities"?
  3. Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that expenditure incurred on repairs and maintenance of flats owned by the assessee and used for the residence of employees is not a perquisite within the meaning of section 40-A(5) of the Income Tax Act?
  4. Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that expenditure by way of ground rent, rates and taxes and society's charges in respect of premises owned by the assessee and used for employee residence is not to be taken into account for disallowance under section 40-A(5)?
  5. Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that the provisions of section 40-A(5) should be applied only to that part of expenditure apportioned under the head "Profits and gains of business or profession" and not to such expenditure apportioned under the head "Interest on securities"?
  6. Whether, on the facts and circumstances of the case, the Tribunal was right in law in holding that while apportioning expenses deductible from "Interest on securities" under section 20(1)(i), the expenses admissible under sections 30, 31, 35 and 37 will not be subject to restrictions imposed under sections 40-A(3), 40-A(5) and 44-C?

Arguments of the Parties

Department's Arguments (as stated in the opinion)

  • On Questions relating to perquisites (Questions Nos. 1 & 2 raised by the Department): Mr. R.V. Desai contended that expenditure on repairs and maintenance of flats owned by the assessee and used for employees constituted a perquisite and relied on the Bombay High Court judgment in Lubrizol India Limited v. Commissioner of Income Tax (187 ITR 25). He argued that section 40-A(5)(a)(ii) includes a second part which covers expenditure in respect of assets of the assessee used by employees and that this part applies even if the expenditure does not result in a perquisite under the first part.
  • On Questions of apportionment (Questions Nos. 3 & 4 raised by the Department): The Department argued that a banking company earns income chargeable under different heads but incurs common expenditure in the course of business (including investments in Government securities). Since the expenditure is common, the ceiling imposed by section 40-A(5) should apply to the total (aggregate) expenditure and, therefore, should be applied in conjunction with the apportionment rule in section 20(1)(i).

Assessee's Arguments (as stated in the opinion)

  • On Questions Nos. 1 & 2: Mr. Mistry contended that section 40-A(5)(a)(ii) comprises three parts: (i) expenditure which results in perquisites to the employee, (ii) expenditure incurred by the assessee on its assets used by an employee, and (iii) allowances in respect of assets owned by the assessee but used by the employee. He argued the Tribunal's questions should be answered by reference to their specific wording: Question No. 1 concerned only "perquisite," and the Lubrizol decision was not applicable because that case dealt with expenditure on assets rather than perquisites. On Question No. 2 he argued that municipal taxes, society charges and rent are not expenditure "in respect of the assets of the assessee used by an employee" and therefore do not fall under section 40-A(5)(a)(ii).
  • On Questions Nos. 3 & 4: The assessee argued that section 40-A places a cap on expenses incurred to earn business income and that the department was incorrect in seeking to apply that cap to the total expense allocated under the apportionment rule; effectively, the assessee challenged applying section 40-A(5) so as to restrict the apportionment calculation under section 20(1)(i).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
American Express International Banking Corporation v. Commissioner of Income Tax (258 ITR 601) Compared on facts concerning classification of income from Government securities (ratio relied upon by the department). The Court stated there was no evidence on the nature of the Government Securities in the present record and therefore the ratio of American Express could not be applied to the present case.
Citibank v. Commissioner of Income Tax (ITR No. 197 of 1984, decided 10th June 1998) Used as a comparative factual and legal authority on classification of income from Government securities and treasury bills. The Court found no reason to distinguish the facts of the present case from Citibank and accordingly answered the assessee's two referred questions in the assessee's favour, following the approach in Citibank.
Lubrizol India Limited v. Commissioner of Income Tax (187 ITR 25) Interpreted the scope of section 40-A(5)(a)(ii): emphasis on "expenditure" and on expenditure in respect of assets of the employer used by employees; held that section 40-A(5) concerns the employer's actual expenditure rather than valuation of perquisites. The Court relied on the ratio of the Lubrizol judgment to hold that total expenditure (including repairs and maintenance, ground rent, municipal taxes and society charges) must be taken into account for disallowance under section 40-A(5); the Court considered it unnecessary to discuss other High Court judgments in view of Lubrizol's authority.

Court's Reasoning and Analysis

The Court structured its analysis in two main parts corresponding to the two sets of referred questions.

1. Questions referred at the instance of the assessee (classification of income from Government securities and treasury bills):

  • The Court noted that for Assessment Year 1981–1982 there was no evidence on the record indicating the precise nature of the Government Securities involved (i.e., whether they were dated or undated securities).
  • Because material about the type of Government Securities was not placed before the Court, it could not apply the ratio of American Express, as urged by the department.
  • The Court found no reason to distinguish the facts of the present case from the facts in Citibank v. Commissioner of Income Tax and therefore answered the two questions referred at the instance of the assessee in the assessee's favour (i.e., the Tribunal's determinations on those points were not to be disturbed in the assessee's favour).

2. Questions Nos. 1 & 2 referred at the instance of the Revenue (section 40-A(5) and perquisites / expenditure in respect of assets):

  • The Court examined the language of section 40-A(5)(a)(ii) and emphasised that the statutory provision focuses on "expenditure."
  • It explained that section 40-A(5) was inserted by Finance Act, 1971 with effect from 1st April 1972 and imposes a limit on deductible expenditure incurred in respect of an asset let out to an employee or incurred by way of a perquisite to the employee.
  • The Court accepted the reasoning in Lubrizol that section 40-A(5)(a)(ii) controls expenditure on assets used by the employee for his own benefit and that the sub-section is concerned with ascertainment of the employer's actual expenditure (not valuation of perquisites to the employee). In other words, for disallowance under section 40-A(5), the determinative focus is the employer's expenditure incurred on amenities or assets used by employees.
  • Applying that interpretation, the Court held that the total expenditure incurred by the assessee—specifically including repairs and maintenance of accommodation, ground rent, municipal taxes and society charges—must be taken into account for disallowance under section 40-A(5).

3. Questions Nos. 3 & 4 referred at the instance of the Revenue (apportionment under section 20(1)(i) and interaction with section 40-A):

  • The Court set out the purpose and text of section 20(1)(i) (as it stood for the relevant year), which provided a rule for apportioning the aggregate of expenses allowable under sections 30, 31, 36 and 37 between interest on securities and other income of a banking company in proportion to receipts from those sources.
  • The Department's position was that because the common expenditures are apportioned under section 20(1)(i), the ceiling or restrictions of section 40-A(5) should apply to the aggregate used in that apportionment.
  • The Court rejected this contention. It reasoned that section 40-A has an overriding effect (section 40-A(1) provides that its provisions shall have effect notwithstanding anything to the contrary in specified provisions including sections 28 to 44-D) and that section 40-A(5) operates as a complete code regarding disallowance of certain expenditure beyond prescribed limits.
  • Because section 40-A forms a complete code and has an overriding effect, the Court held that section 40-A(5) cannot be read into the mechanical apportionment rule contained in section 20(1)(i) merely because section 20(1)(i) refers to expenditure allowable under sections such as section 37. In short, the Court did not accept the Department's attempt to restrict the apportionment calculation by applying section 40-A(5) to the aggregate used for apportionment.
  • Consequently, the Court answered Questions Nos. 3 and 4 in favour of the assessee and against the Department.

Holding and Implications

Holding (summary of final rulings):

  • On the two questions referred at the instance of the assessee (classification of interest on sale of Government securities and discount on treasury bills): the Court answered both questions in the affirmative, i.e., in favour of the assessee and against the Department (following the reasoning that the present facts could be treated like Citibank and that American Express could not be applied on the record before the Court).
  • On Questions Nos. 1 and 2 referred at the instance of the Revenue (whether repairs/maintenance and ground rent/rates/taxes/society charges are to be treated as perquisite/disallowable under section 40-A(5)): the Court answered these questions in the negative, i.e., in favour of the Department and against the assessee, holding that total expenditure including repairs, ground rent, municipal taxes and society charges must be taken into account for disallowance under section 40-A(5).
  • On Questions Nos. 3 and 4 referred at the instance of the Revenue (interaction of section 40-A(5) with apportionment under section 20(1)(i) and whether section 40-A restrictions apply to expenses apportioned to "Interest on securities"): the Court answered these questions in the affirmative, i.e., in favour of the assessee and against the Department, holding that section 40-A(5) cannot be read into section 20(1)(i) and that the apportionment rule in section 20(1)(i) stands as applicable to allow allocation of common expenses as provided.
  • DISPOSITION: The Reference was disposed of in accordance with the foregoing answers. The Court recorded "No order as to costs" and made no order on the Notices of Motion Nos. 2354 of 1994, 2355 of 1994 and 2356 of 1994.

Implications: The direct effect of the decision is to answer the specific referred questions in the ways indicated above for the Assessment Year 1981–1982: (a) the assessee prevailed on its two questions about classification of income from Government securities/treasury bills; (b) the Revenue prevailed on the questions about disallowance under section 40-A(5) for expenditure on employer-owned accommodation and related charges; and (c) the assessee prevailed on the point that section 40-A(5) cannot be read into the apportionment rule of section 20(1)(i). The Court disposed of the Reference and made no order as to costs. The opinion does not purport to lay down a broader new principle beyond the answers to the referred questions as set out above.

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S.H Kapadia, J.:— By Order dated 9th October 1991, the Tribunal has referred to this Court, common questions of law under section 256(1) of the Income Tax Act for our opinion.

2. The following two Questions have been referred to us at the instance of the assessee.

(1) Whether on facts and in the circumstances of the case, the Tribunal erred in holding that the interest received by the Bank on sale of Government securities held by it is assessable to tax as ‘income from business’ and not as ‘interest on securities’?

(2) Whether on facts and in the circumstances of the case, the Tribunal erred in holding that the discount on treasury bills is assessable as ‘income from business’ and not as ‘interest on securities’?

ANSWERS:

3. In this Reference, we are concerned with Assessment Year 1981–1982. In the present case, there is no evidence on record to indicate the nature of the Government Securities. There are Dated Government Securities and that there are Securities which are not Dated. In the present case, no material is placed before us regarding the type of Government Securities. In the circumstances, we cannot apply the ratio of the judgment of this Court in the case of American Express International Banking Corporation v. Commissioner of Income Tax, reported in 258 ITR Page 601, as contended by the department.

4. In the circumstances, we do not see any reason to distinguish the facts of this case from the facts in the case of Citibank v. Commissioner of Income Tax decided on 10th June, 1998 vide ITR No. 197 of 1984. Accordingly, we answer both the above questions, on facts of this case, in the affirmative i.e in favour of the assessee and against the department.

5. At the instance of the Revenue, the following four Questions have been referred to us by the Tribunal for our opinion. The said questions are as follows:

(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the expenditure incurred on repairs and maintenance of flats owned by the assessee and used for the residence of employees is not perquisite within the meaning of section 40-a(5) of the Income Tax Act?

(2) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the expenditure incurred by way of payment of ground rent rates and taxes and society's charges in respect of the premises owned by the assessee and used for the purpose of residence of employees is not to be taken into account for the purpose of disallowance under section 40-a(5) of the Income Tax Act?

(3) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the provisions of section 40-A(5) should be applied only on that part of the expenditure by way of salaries and perquisites etc. apportioned under the head “Profit and gains of business of profession” and not in respect of such expenditure apportioned under the head “Interest on securities”?

(4) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that while apportioning the expenses deductible from “Interest on securities” in the case of the banking company in terms of section 20(1)(i), the expenses admissible under the provisions of sections 30, 31, 35 and 37 of the Act will not be subject to restrictions imposed under section 40-A(3), 40-A(5) and 44-C of the Income Tax Act.?”

6. ARGUMENTS ON QUESTION NOS. 1 & 2 RAISED BY THE DEPARTMENT:

7. With regard to Question Nos. 1 and 2, referred to us at the instance of the department and quoted hereinabove, Mr. R.V Desai, learned senior counsel appearing on behalf of the department contended that in this case, expenditure was incurred by the assessee on repairs and maintenance of flats owned by the assessee and used for the residence of employees. He contended that such expenditure constituted perquisite. In this connection, he relied upon the judgment of the Bombay High Court in the case of Lubrizol India Limited v. Commissioner of Income Tax, reported in 187 ITR Page 25. He contended that section 40-A(5)(a)(ii) is in two parts. He contended that we are not concerned with the first part. He contended, however, that the second part of the said sub-section stipulates that where as assessee incurs any expenditure in respect of any of its assets used by its employee then the expenditure incurred by the assessee is covered by the second part of 40-A(5)(a)(ii). He contradistinguished the second part with the first part, which applies only if the expenditure results in any perquisite to the employee.

8. On the other hand, Mr. Mistry learned counsel appearing on behalf of the assessee argued that section 40-A(5)(a)(ii) is in three parts. That, it refers to expenditure which results in perquisites to the employee; that it also refers to expenditure incurred by the assessee on its assets and lastly, it refers to allowances in respect of assets owned by the assessee, but used by the employee for his own purposes or benefit. He contended, therefore, that section 40-A(5)(a)(ii) refers to three items, viz. perquisites, expenditure on the assets of the employer-assessee and allowances in respect of the assets. He, however, contended that Question No. 1 expressly refers only to perquisite and not to expenditure on the assets. He further contended that similarly, Question No. 2 quoted hereinabove refers to payment of ground rent, taxes and Society charges in respect of the premises owned by the assessee and, therefore, he contended that each Question needs to be separately answered and each Question needs to be answered looking to its contents. Coming to Question No. 1, he contended that the ratio of the judgment of the Bombay High Court in Lubrizol India's case [supra] was not applicable because in that matter, the issue was concerning expenditure on the asset and in that matter, the Question was not concerning perquisites under section 40-A(5)(a)(ii). He further contended that in that matter the only issue was whether the second part of section 40-A(5)(a)(ii) was attracted to the expenditure involved qua the assets. In the circumstances, he contended that the judgment in Lubrizol India's case did not apply. He contended that on the other hand in our case what is impugned is perquisite.

9. Mr. Mistry further contended on behalf of the assessee that the Court should answer the Questions as framed by the Tribunal. He contended that question No. 1, raised at the instance of the department, is very specific viz. Whether expenditure incurred on repairs and maintenance of flats owned by the assessee represented perquisites in the hands of the employee under section 40-A(5)(a)(ii), whereas, Question No. 2 as framed by the Tribunal was - whether expenditure incurred by way of ground rent, taxes and Society charges in respect of the premises owned by the assessee came under disallowance under section 40-A(5)(a)(ii). On question No. 2 it was urged by Mr. Misrty that expenses by way of Municipal taxes, Society charges, rent did not come under section 40-A(5)(a)(ii) as such an expenditure was not in respect of the assets of the assessee used by an employee. Mr. Mistry contended that expenses such as rent, Municipal taxes, maintenance charges do not fall under section 40-A(5)(a)(ii) as it is not an expenditure in respect of the assets of the assessee.

10. FINDINGS ON QUESTION Nos. 1 & 2 RAISED BY THE DEPARTMENT:

11. These two Questions are being jointly decided. Briefly, the assessee has objected to the following two items being considered for disallowance under section 40-a(5) of the Act. They are expenditure on repairs and maintenance of the premises owned or taken on lease by the assessee Bank and let out to the employees and secondly, ground rent, rates and taxes and Society charges in respect of owned accommodation given to the employees. section 40-A(5)(a)(ii) states that where the assessee incurs expenditure, which results in provision of any perquisite to an employee or incurs any expenditure in respect of any assets of the assessee used by the employee for his own benefit, then so much of such expenditure, as in excess of the limit specified, shall not be allowed as a deduction. If one reads section 40-A(5)(a)(ii), the emphasis is on the word “expenditure”. There could be expenditure which results in providing perquisite to an employee, there could also be an expenditure in respect of any assets of the assessee used by an employee for his own benefit.

12. Sub-section (5) was inserted in section 40-A by Finance Act, 1971 with effect from 1st April 1972. It imposes a limit on deductible amount of expenditure, which is incurred in respect of an asset let out to an employee or which is incurred by way of perquisite to the employee. Therefore, if one keeps the underlying object in mind, it is evident that section 40-A(5)(a)(ii) controls the expenditure on the asset, which is used by the employee for his own benefit. This is also clear from the first proviso to section 40-a(5)(a), where a ceiling is imposed on the expenditure in respect of an asset used by the employee for his own benefit. Therefore, section 40-a(5) deals with ascertainment of actual expenditure incurred by the assessee. Under this section, the value of perquisite is absent. For the purpose of disallowance under section 40-a(5), the value of perquisite is not relevant because while finding out the expenses actually incurred by the employer on certain amenities made available to the employees, the cost of such amenities, as incurred by the employer, can easily be ascertained on factual basis. Therefore, while construing section 40-a(5) the emphasis is on employer-assessee and not on the employee as in the case of Rule 3, which is completely ruled out so far as section 40-a(5) is concerned. This is the precise ratio of the judgment of the Bombay High Court in the case of Lubrizol India Limited v. Commissioner of Income Tax, reported in 187ITR, Page 25.

13. For the aforestated reasons, we hold that the total expenditure incurred by the assessee, including repairs and maintenance of accommodation, ground rent, municipal taxes and Society charges, will have to be taken into account for the purposes of disallowance under section 40-a(5) of the Act. In view of the judgment of the Bombay High Court in Lubrizol's case, it is not necessary for us to discuss the judgments of the other High Courts.

14. Accordingly, we answer Question Nos. 1 and 2 in the negative i.e in favour of the department and against the assessee.

15. ARGUMENTS ON QUESTION NOS. 3 AND 4 RAISED BY THE DEPARTMENT:

16. On behalf of the department it has been argued that a Banking Company earns income, which is chargeable to tax under different heads. That, in the course of carrying on its business, a Banking Company has to make investments in Government Securities. That, while the income earned by it has to be allocated under proper heads with reference to different sources, the expenditure is common and, therefore, when a Banking Company earns income, which falls under the head “Profits & Gains from Business” and also under the head “Interest on Securities” of Central or State Government, the expenditure to earn the income under both the heads is common and since the expenditure is common, section 40-a(5) should be applied to the total expenditure.

17. On the other hand, it was argued on behalf of the assessee that section 40-A puts a cap on expenses incurred to earn business income and in the circumstances, the department is wrong in putting that cap on the total expense. This is the basic controversy in this case.

18. FINDINGS ON QUESTION NOS. 3 AND 4 RAISED BY THE DEPARTMENT:

19. Question Nos. 3 and 4 deal with common topic of interpretation of section 20(1)(i), as it stood at the relevant time. For the sake of convenience, section 20(1)(i) is quoted hereinbelow.

“20. Deductions from interest on securities in the case of a banking company. — (1) In the case of a banking company —

(i) the sum to be regarded as a sum reasonably expended for the purpose referred to in clause (i) of section 19 shall be an amount bearing to the aggregate of its expenses as are admissible under the provisions of sections 30, 31, 36 and 37 [other than clauses (iii), (vi), (vii) and (viia) of sub-section (1) of section 36] the same proportion as the gross receipts from interest on securities (inclusive of tax deducted at source) chargeable to income tax under section 18 bear to the gross receipts of the Company from all sources which are included in the profit and loss account of the Company;”

20. In this case, we are concerned with Assessment Year 1981–1982. This section has been omitted with effect from 1-4-1989.

21. In order to understand above quoted arguments advanced by the parties, the following facts are required to be noted. Assessee is a Banking Company. In the course of its business, it has to make investments in Government Securities. The income earned by it has to be allocated for tax purposes under proper heads with reference to different sources. However, the expenditure is common. Therefore, section 20(1)(i), quoted above, enacted a rule to apportion the common expenditure allowable under sections 30, 31, 36 and 37 into two heads viz. expenses allowable under section 19(i) for the purpose of realising “Interest on securities” and expenses allowable for other types of Banking business in proportion to the income earned under the respective heads.

22. In other words, the amount allowable under section 19(i) had to be calculated as per the following formula:

Aggregate of expenses X

23. According to the Department, section 40-a(5) imposes a ceiling for allowance of a particular type of expenditure and that ceiling was not only applicable to the provisions of section 40-a, but it was also applicable to section 20(1)(i) because under section 20(1)(i), an artificial rule of apportionment is contemplated under which the Department is required to apportion the common expenditure allowable under sections 30, 31, 36 and 37 into two heads viz. that, which is allowable under section 19(i) to realise interest on securities and expenditure allowable for other types of Banking business in proportion to the income earned under the respective heads. According to the Department, since section 37 forms an integral part of apportionment of expenditure under section 20(1)(i), section 40-A(5) is automatically attracted. We do not find any merit in the case of the Department. Section 40-A refers to expenses/payments not deductible in certain circumstances. section 40-a(1) declares that the provisions, of section 40-A shall have effect, notwithstanding anything to the contrary in section 28 to section 44-D (which includes sections 36 and 37). Therefore, provisions of section 40-A have an overriding effect over the provisions of any other section by providing that section 40-A will have effect, notwithstanding anything to the contrary contained in any other provisions relating to computation of income under the head “profits and gains of business”. In view of section 40-A having an overriding effect, and since section 40-A deals with expenses not deductible under certain circumstances, and since section 40-a(5) provides for disallowance of expenditure beyond a particular limit, that section operates as a complete code by itself and, therefore, it cannot be read into section 20(1)(i). The underlying idea behind the Department's case is to restrict the aggregate of expenses under the above formula. However, as stated above, section 40-a(5) is a part of section 40-a and section 40-a has an overriding effect in the matter of computation of income under the head “profits and gains of business”. Therefore, section 40-A cannot be read into section 20(1)(i) merely because section 20(1)(i) refers to apportionment of common expenditure allowable, inter alia, under sections 36 and 37.

24. For the aforestated reasons, we answer Question Nos. 3 and 4 quoted hereinabove in the affirmative i.e in favour of the assessee and against the Department.

25. Accordingly, the Reference is disposed of. No order as to costs.

26. Consequently, no order on Notice of Motion Nos. 2354 of 1994, 2355 of 1994 and 2356 of 1994.

Order accordingly.

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