Thursday, 30 April 2015

Taxation of Bonus & Dividend Stripping u/s 94.


 

Bonus Stripping u/s 94(8)


Section 94(8) has been inserted with effect from assessment year 2005-06 to curb the practice of creation of losses via Bonus Stripping. Briefly, it says that the loss, if any, arising to a person on account of  purchase and sale of original units shall be ignored for the purpose of computing his income chargeable to tax if the following conditions are satisfied: 

  • The person buys or acquires any units within a period of 3 months prior to the record date,
  • He is allotted additional units (bonus units) without any payment on the basis of holding of such units on such date,
  • He sells or transfers all or any of the units excluding bonus units within a period of 9 months after such date,
  • On the date of sale or transfer he continues to hold all or any (atleast one) of the additional units (bonus units).

Then the amount of loss so ignored shall be deemed to be the cost of purchase or acquisition of such additional units as are held by him on the date of such sale or transfer. 


Remember all the above stated conditions have to be cumulatively fulfilled in order to attract section 94(8). 

The Provision of Bonus Stripping under section 94(8)

  • Applies to all units whether bought or acquired
  • covers both open ended and close ended equity funds
  • is applicable even in case where units are held as stock in trade
  • is applicable only in respect of units and not shares
  • does not apply if all additional units are transferred before the original units are sold.

Indexed cost of Acquisition: Since the loss is considered to be the cost of acquisition of the bonus units held on the date of sale, the benefits of indexation should be available on such deemed cost of acquisition.

 

 

 

FAQ on Bonus Stripping.

What is Bonus Stripping and how I am using this strategy to cut taxes?



I had to sell my mutual funds and stocks to purchase real estate property this year. However, I was having a short term capital gain due to selling mutual funds and stocks. I am planning to cut taxes on short term capital gains using Bonus Stripping as one of the strategy. Do you know that you can save tax or cut taxes for short term capital gain by adopting a simple strategy which his legal? What is this bonus stripping in shares is all about? What are the features of Bonus Stripping and what are its limitations?

What is bonus stripping in shares?



Bonus stripping in shares is an option where an investor buys shares of a company which announced bonus shares and sell them off after bonus date and book notional loss. This notional loss can be legally adjusted against any other capital gains for the year and we can cut/save tax. This bonus stripping in company shares is still in practice u/s 94 (8) of Income Tax Act 1961.

Bonus Strip explained with an example



Infosys announced a bonus issue few weeks back. Let us say Infy shares are quoting at Rs 4,000 (for easy explanation) per share and you purchased 100 shares @ Rs 4,000 costing Rs 4 Lakhs. Now on bonus date, shares of Infy would fall by 50% (1:1 bonus). Means the price would fall to Rs 2,000. However, you would get another 100 shares in your demat account. So you have a total of 200 shares, but the share price is Rs 2,000 per share. Total value  of Rs 4 Lakhs remains same. However, if you sell 100 original shares out of this for Rs 2 Lakhs, it would indicate as notional loss of Rs 2 Lakhs (You brought 100 shares at Rs 4 Lakhs and sold 100 shares at Rs 2 Lakh). This notional loss can be adjusted against any other short term capital gain or long term capital gain from other sources. So, if you have capital gain of up to Rs 2 Lakhs from selling mutual funds or any other stocks, you can adjust this notional loss and you need not pay any short term capital gains tax.

Features of Bonus Stripping in shares




  • You can legally sell such shares after ex-bonus date and adjust loss against any other capital gains. However, there are certain conditions to be fulfilled.
  • Such notional loss can be adjusted against the short term capital gain or long term capital gain from stocks, equity funds, debt funds, gold and property.
  • Unadjusted loss can be carried forward to 8 financial years.
  • Good strategy for high tax bracket investors
  • Good for those who are worrying about short term capital gains from debt funds as they would be treated as short term gains if sold within 3 years (as announced in recent budget this year).

What are the limitations of Bonus Stripping in shares?




  • Investors have to hold bonus shares for at least 1 year to avoid such tax. Since the acquisition price of bonus shares is zero, if you sell them before 1 year, you need to pay 15% short term capital gain.
  • Strategy does not work if you have shares for more than 1 year in your portfolio. Income tax law allows first in, first out principle. This is run on the principle that long term capital gain taxes are free after 1 year and loss of such investment, there is no provision to adjust.
  • Investment in low quality stocks can wipe-off your capital itself.
  • Strategy is not good during bear markets or when markets have reached and when stock markets are expected to see some correction.
  • You can adjust such loss against any fixed deposit interest rate income in a year.

Bonus Stripping explained with various scenarios



Let us assume that Infy share is trading at Rs 4,000 and you bought 100 shares. Bonus is announced (1:1) and share price has fallen to Rs 2,000 on bonus date.

Scenario-1 – You have sold all shares (100 original and 100 bonus) within 1 year @ Rs 2,100




  • Shares brought – Short term capital loss – (Rs 2,100 current rate – Rs 4,000 original price) x 100 shares = Loss of Rs 190,000
  • Bonus shares sold within 1 year = Rs 2,100 current price – Rs 0 acquisition value of bonus shares x 100 bonus shares = Profit of Rs 210,000
  • Short term capital gain = Rs 210,000 profit – Rs 190,000 of loss = Rs 20,000
  • Short term capital gains tax = Rs 20,000 x 15% = Rs 3,000

Scenario-2 – Original shares sold within 1 year @ Rs 2,100 and bonus shares sold after 1 year from date of bonus issue




  • Shares brought – Short term capital loss – (Rs 2,100 – Rs 4,000) x 100 = Loss of Rs 190,000
  • Bonus shares sold after 1 year = Rs 2,100 – Rs 0 (bonus shares acquisition value is zero) x 100 = Profit of Rs 210,000. However, no capital gain as equity shares sold after 1 year are tax free
  • Short term capital loss = Rs 190,000.
  • This loss can be adjusted against other short term capital gains of stocks, mutual funds, gold or property. If you do not have any other capital gains, you can carry forward this to next 8 financial years and adjust them.

 

Conclusion: Bonus stripping is one of the best way to cut and save tax for short term or long term capital gain. However, this strategy should be used wisely to ensure that you do not end up making wrong steps. Buying blue chip stocks which announced a bonus issue would be better strategy. You should keep this mind that this strategy is legally valid only for the cases where bonus shares are sold after 1 year from the date of bonus shares allotment. Otherwise, you need to pay capital gains tax on bonus shares, where acquisition value is zero

 

Dividend  Stripping

Dividend stripping is a strategy to reduce the tax burden, by which an investor gets tax free dividend by investing in securities (including units), shortly before the record date and exiting after the record date at a lower price, thereby incurring  a short-term capital loss. This short-term capital loss is compensated with the tax free dividend. Further the investor can set off such loss against capital gains – both short-term and long-term – as the law stands at present and can also carry forward the unabsorbed loss for set off in future years.

 

In simple words, the benefits of dividend stripping is that, on one side, the investor would earn a tax-free/exempt dividend or income [under sections 10(34) and 10(35) of the I. T. Act] and, on the other side, he would suffer a short-term capital loss i.e. difference between the cum-dividend price and ex-dividend price, which is available to be utilized or carry forward by the tax payer for reducing his present or future tax liability.

 

 

Illustration:-

 

Mr. A purchase of securities/units linked to share of a company on which dividend is payable, at a price, say Rs. 1000. Mr. A by holding on the investment in the above securities/securities linked to share of a company enjoying the benefit of dividend distributed on such investment, say Rs. 100. Mr. A sale these securities/units linked to shares of a company at a lower price, say Rs. 850. This fall in price of the shares/units linked to share of a company is largely attributable to the dividend payout.

A dividend stripping transaction is particularly lucrative for a taxpayer since by virtue of section 10 (33) of the Income Tax Act, dividend distributed by a company is not taxable in the hands of its shareholders. Further the taxpayer may claim a carry forward or setoff of the loss arising from selling the shares/units linked to shares of a company at a lower price. Another section 94(7) of the Income Tax Act provides that only so much of loss is available for set-off or carry forward, which exceeds the amount of dividend earned on the shares/units linked to share of a company. In effect, in the above mentioned example the taxpayer would have incurred a loss of Rs. 150 by virtue of sale and purchase of shares (Rs.1000-Rs.850= Rs.150), however by virtue of section 94(7), only Rs. 50 (Rs.150-Rs.100) would be available as loss for set off and carry forward purposes.

 

Analysis of relevant Sections:-

1. Section 14A:-

For the purpose 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.

 

Analysis:-

The fundamental principle underlying in sec. 14A is that income which is not taxable or exempt falls in a separate stream distinct from income taxable under the Act. That, expenditure which is incurred in relation to income subject to tax would be admissible under Sections 30 to 43B whereas expenditure incurred to earn exempt income would be extraneous in the computation of taxable income under the Act. Thus, only that expenditure is deductible which is incurred in relation to business or profession. Expenditure producing non-taxable income would not be permitted to be claimed as admissible expenditure. Thus, in all cases where the assessee has some exempt income, his total expenditure has got to be apportioned between taxable income and exempt income and the latter would have to be disallowed.

In the case of ACIT Vs. Dakshesh S. Shah [(2004) 90-ITD-519 (Mum.)] the High Court held that sec. 14A is part of Chapter IV and it applies to expenditure referable to any head of income referred to in sec. 14. Sec. 14A is couched in specific terms which does not leave any room for doubt or dispute with regard to the fact that in order to claim deduction of expenditure in relation to a particular income, the assessee has to show that the said income forms part of total income.

 

2. Section 94(7)

As per sec. 94(7), where-

a)     Any person buys or acquires any security or unit within a period of three months prior to record date;

b)      

(i)             Such person sells or transfer such securities with in a period of three months after such date or

(ii)            Transfers such units within a period of 9 months after such record date;

c)     The dividend or income on such securities or unit received or receivable by such person is exempted,

Then, the loss, if any, arising to him on account of such purchase and sale of securities or unit, to the extent such loss does not exceed the amount of dividend or income received or receivable on such securities or unit, shall be ignored for the purposes of computing his income chargeable to tax.

 

Analysis:-

All the three conditons must be satisfied before sec. 94(7) is attracted. Thus, if the shares are acquired before the period of three months prior to record date, section 94 (7) shall not apply. Similarly, if such shares are sold after three months of the record date, section 94(7) shall not be applicable.

‘Record date’ means such date as may be fixed by a company or a Mutual Fund or the Unit Trust of India for the purpose of entitlement of the holder of the securities or the unitholder to receive dividend or income, as the case may be.

 

Difference between Sec. 14A and 94(7):-

As regards the reconciliation of sec.14A and sec.94(7), the two operate in different fields. Sec. 14A deals with disallowance of expenditure incurred in earning tax-free income while Sec. 94(7) refers to disallowance of loss on acquisition of an asset. Sec. 14A applies to cases where an assessee incurs expenditure to earn tax free income but where there is no acquisition of an asset. In cases falling u/s 94(7), there is acquisition of an asset and existence of the loss which arises at a point of time subsequent to the purchase of units and receipt of exempt income. It occurs only when the sale takes place. Sec. 14A comes in when there is claim for deduction of an expenditure whereas Sec. 94(7) comes in when there is claim for allowance for the business loss. Sec. 14A and Sec.94(7) were inserted by the Finance Act, 2001, Sec. 14A was inserted w.r.e.f. 1.4.1962 while Sec. 94(7) was inserted w.e.f. 1.4.2002.

 

Accounting Aspect:-

Accounting Standard 13:-  Accounting Standard 13 provides that interest/ dividends received on investments are generally regarded as return on investment and not return of investment and it is only in certain circumstances where the purchase price includes the right to receive crystallized and accrued dividends/ interest, that have already accrued and become due for payment before the date of purchase of the units, that the same has got to be reduced from the purchase cost of the investment. A mere receipt of dividend subsequent to purchase of units, on the basis of a person holding units at the time of declaration of dividend on the record date, cannot go to offset the cost of acquisition of the units.

 

Case Studies:-

 

1. CIT Vs. Walfort Share and Stock Brokers P. Ltd. [Civil Appeal No. 4927 of 2010 (SC)]

Walfort Share and Stock Brokers P. Ltd purchased units of Chola Freedom Technology Mutual Fund on March 24, 2000. This was the record date for declaring dividend. The company became entitled to a dividend at Rs 4 per unit and the amount earned was Rs 1,82,12,862. The NAV (net asset value) stood at Rs 17.23 on this date. It fell to Rs 13.23 soon after declaration of the dividend. The company sold all the units on March 27, 2000. It received an incentive of Rs 23,76,778 for the transaction. In its income-tax return, the company claimed exemption of the dividend amount of Rs 1,82,12,862 under Section 10(33) of the I-T Act. It also claimed a set-off of Rs 2,09,44,793 as loss incurred on the sale of units.

The assessing officer (AO) disallowed this loss. He pointed out that this was a dividend stripping transaction and not a business transaction. It was entered into primarily for the purpose of tax avoidance. The loss was artificially created by a pre-designed set of transactions.Metter went to Supreme Court.

Supreme Court dismissed the SLP and held that loss incurerd by the Taxpayer in ‘dividend-stripping’ transaction cannot be disallowed for year prior to the introduction of specific anti-avoidance provisions in the Income tax laws. The Supreme Court further held that once it is established that there was actual investment and sale, the fact that tax-free dividend was received did not affect the quantum of loss incurred. In view of the Supreme Court, the use of provision of the Income tax Laws by the Taxpayer to obtain a tax advantage was not abuse of law and the loss arising was admissible as the transaction of purchase and sale was real.

 

2. UOI Vs.Azadi Bachao Andolan [(2003) 263-ITR-706 (SC)]

The apex court clearly held that legtimate tax planning cannot be challenged merely on the basis of assumed underlying intentions of tax evasion. The court, commenting on the McDowell’s decision whilst referring to various other judgements, agreed that not every action or inaction on the part of the taxpayer, while results in reduction of tax liability, must be viewed with suspicion. Taxpayers are free to carry out any trade/activity or plan his affairs with circumspection, within the frame work of law, unless the same falls in the category of a collarable device without substance. So principally, the right of taxpayer to “plan” his transactions to mitigate tax liability cannot be questioned only because it is “tax advantaged” provided “economic substance” is demonstrated in the same. However, if the motive of the tax avoidance is seen to outweigh the purpose of the transaction evidenced and evaluated with factual aspects, the Courts in India more likely than not will tread the path of assuming that “substance over form” should prevail and the transaction should be challenged.

 

Conclusion:-

In the case of Wallfort share and stock brokers Pvt. Ltd. the Supreme Court of India has reiterated that tax planning is perfectly valid, since it is within the four corners of law. However, the revenue department has time and again attempted to tax legally permissible transactions as tax avoidance mechanism. The Governent of India is in the process to introduce the Direct Tax Code. The Direct Tax Code proposes to introduce a General Anti Avoidance Rule (“GAAR”), which could empower tax authorities to re-characterize a transaction entered into by a taxpayer and the income there from. The GAAR provisions are proposed to override the other provisions of the DTC. Currently tax planning is considered as legal in light of the Azadi Bachao Andolan case. However, it remains to be seen how GAAR would impact tax planning by taxpayers, including in cases of dividend stripping. 

 

In case you have any query, please feel free to write to me at taxbymanish@yahoo.com    

                                 

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