This article is written by Divya Raisharma, a law student at the Government Law College, Mumbai. This article explains Section 40A of the Income Tax Act, 1961, in detail, the exceptions to the said sub-sections (if any), and the exception to Section 40A. It also mentions relevant case laws and frequently asked questions (FAQs). 

This article has been published by Sneha Mahawar.​​ 

Introduction

Any person who earns any profit or gains from carrying out a business or profession is eligible to deduct allowable expenditures from the profit earned, unlike in the case of salary income,  as per the Income Tax Act, 1961. This provision significantly reduces tax liability and relieves businessmen and professionals of a significant burden. However, because any beneficial scheme can be abused, there have been cases of taxpayers deducting expenses that are not permitted, personal, excessive, fictitious, or unreasonable. Such expenditures are disallowed as deductions by the assessing officer, who assesses the assessee’s income tax return. This disallowance takes place when the assessing officer’s opinion is that the expenditure is excessive or unreasonable with regard to the fair market value of the goods, beyond the legitimate needs of the business or profession, or even beyond the benefit derived from such goods, services, or facilities. However, it is not necessary that the whole amount be disallowed. Even a part of the expenditure can be disallowed if the assessing officer finds it unreasonable or excessive.

Elements of Section 40A of the Income Tax Act, 1961

Section 40A belongs to Chapter IV of the Act, which deals with the computation of total income under the heading “profits and gains from business or profession.” It is applicable when calculating total income under profits and gains from business or profession. Section 40A has multiple sub-sections, so the dissertation would be done sub-section by sub-section. 

Section 40A(1) of the Income Tax Act, 1961

Section 40A(1) is a non-obstante clause, which refers to an overriding clause that is superior to other clauses. 

In case of any overlaps or disharmony between the clauses, other clauses have to make way for them; this is affirmed in the case of Commissioner of Income Tax v. Bharat Vijay Mills Ltd. (1980).

Section 40A(2) of the Income Tax Act, 1961

Section 40A(2)(a)

Professional and personal relations in businesses can lead to assumptions of bias. For example, family members are naturally assumed to be favourably biased toward one another. People tend to grant each other excess or unreasonable monetary benefits due to the closeness of certain relationships and biases. Such benefits, however, are not allowed by laws, and the embodiment of this rule can be seen in Section 40A(2)(a). 

This clause is a crackdown on people who not only grant excess or unreasonable benefits to the specified persons but also take tax deductions on the same. In the absence of a special relationship between the parties, the transaction would have been reasonable and proper. But this way, people not only fill their relatives’ pockets but also hinder the rightful taxation of the excess amount, which would otherwise be taxed. 

However, not all transactions with the specified persons are deemed to be excessive or unreasonable. The onus is on the assessing officer to prove so. The relevant case law for the same is Marghabhai Kishabhai Patel and Co. v. Commissioner of Income Tax (1976).

When the assessee incurs any expenditure which is paid or is payable to the below-specified persons and such expenditure is (in the opinion of the assessing officer) excessive or unreasonable in regards to

• The fair market value of goods, services or facilities;
• Legitimate needs of the business or profession, or
• The benefit derived/accrued by the assessee,

In these cases, such an excessive or unreasonable amount of expenditure has to be disallowed. Hence, an assessing officer cannot allow an expenditure to be excessive. Only the excess or unreasonable portion of the deducted expenditure is to be disallowed. It, however, does not speak about the disallowance of the whole expenditure, even though it is inflated. For example, if the fair market value of a good is 100, but the assessee has deducted 120 for the same, then only the excess amount of 20 is disallowed while the assessee is allowed to deduct 100. 

Section 40A(2)(b)

As mentioned above, Section 40A(2)(a) is applicable only to specified persons. This list of persons is given in clause (b), and is produced as follows:

Nature of assessee	Specified person(s)
Individual	Relative
Company	Directors of the company and their relatives.
Firm	Partners of the firm and their relatives.
Association of person	Members of the association of persons and their relatives.
Hindu undivided family	Members of the family and their relatives.
Any assessee	individual with a substantial interest in the business or profession and any of their relatives.
Any assessee	A company with a substantial interest in the business or profession, directors of the company, directors’ relatives, and any company having a substantial interest in the aforesaid company.
Any assessee	A firm with a substantial interest in the business or profession, a partner of the firm, and a partner’s relative.
Any assessee	Association of persons with a substantial interest in the business or profession, members of the association, and members’ relatives.
Any assessee	Hindu Undivided Family (HUF) with a substantial interest in the business or profession, members of the family and members’ relatives.
Any assessee	Company of which a director has a substantial interest in the business or profession of the assessee. To illustrate, Mr. Apple has a substantial interest in the business of the assessee, and Mr. Apple is the director of company Y. Hence, company Y is a specified person.
Any assessee	Other directors belonging to the above-mentioned company and their relatives.  For example, Mr. X has a substantial interest in the business of the assessee, and Mr. X is a director of company Y. Mr. B is also a director of company Y. Hence, Mr. B is a specified person.
Any assessee	Firm of which a partner has a substantial interest in the business or profession of the assessee.
Any assessee	Other partners belong to the above-mentioned firms and their relatives.
Any assessee	Association of persons, of which a member has a substantial interest in the business or profession of the assessee.
Any assessee	Other members of the above-mentioned association and their relatives.
Any assessee	Hindu undivided family of which a member has a substantial interest in the business or profession of the assessee.
Any assessee	Other members of the above-mentioned family and their relatives.
Individual	The person in whose business or profession the assessee or his relative has a substantial interest.
Company	The person in whose business or profession the assessee, its director, or, director’s relative has a substantial interest.
Association of persons	The person in whose business or profession the assessee, its member, or member’s relative has a substantial interest.
Firm	The person in whose business or profession the assessee, its partner, or partner’s relative has a substantial interest.
Hindu Undivided Family	The person in whose business or profession the assessee, its member, or member’s relative has a substantial interest.

Under Section 2(41) of the Act, “relative” means the assessee’s husband/wife, brother, sister, or any lineal ascendants or descendants.

A person is said to have a substantial interest in the assessee’s business or profession in the following situations:

Assessee	Person
Company	the beneficial owner of equity shares carrying not less than twenty percent of the voting power
Other	Someone who is beneficially entitled to not less than twenty percent of the profits of the assessee’s business or profession.

Section 40A(3) of the Income Tax Act, 1961

Along with the above provisions, Section 40A(3) puts up another category of disallowed expenditures. This provision encourages the Digital India initiative and fulfils the aim of tax authorities’ to curb fake entries for tax-saving purposes. Due to this provision, no one can claim expenditure in excess of Rs. 10,000 in a single day. This amount may be from one transaction or the sum of multiple transactions. This, however, does not apply to transactions done by account payee check drawn on a bank or account payee bank draft. It is important to note that the sub-section has only excluded two methods of payment from the restriction, and hence, any payment made by cash, debit card, or UPI, etc., will not escape the restriction. The object of this provision is to have sources of payment disclosed, which in turn keeps a check on tax evasion.

However, the authorities have relaxed the effects of this provision by putting out Rule 6DD and the Income Tax Rules, 1962. 

As per Section 7 of the Finance Act, 1968, the definition of “cheque” is to be taken from the Negotiable Instruments Act, 1881. Section 6 of this Act defines a “cheque” as a bill of exchange drawn on a specified banker and payable only on demand. A cheque includes the electronic image of a truncated cheque and a cheque in electronic form. 

Section 40A(3A) of the Income Tax Act, 1961

While in Section 40A(3A), the expenditure in question was the expenditure pertaining to and made in the previous year, it talks about the scenario where the assessee makes payment in the assessment year pertaining to an expenditure of the previous year. Just as above, if the total payment exceeds Rs. 10,000/-, the excess payment is disallowed and deemed to be the profit or gain from the business or profession of the subsequent year. However, the disallowance won’t affect circumstances covered by Rule 6DD of the Income Tax Rules, 1962. 

An important point to note is the explicit provision in the sub-section regarding the extension of the payment limit from Rs. 10,000 to Rs. 35,000 when the said payment is made for the ply, hire, or leasing of goods.

Definition of other electronic modes as per Rule 6ABBA of Income Tax Rules, 1962

As per Rule 6ABBA, the other electronic modes meant:

• Credit Card
• Debit Card; 
• Net Banking;
• IMPS (Immediate Payment Service);
• UPI (Unified Payment Interface);
• RTGS (Real Time Gross Settlement); 
• NEFT (National Electronic Funds Transfer); and
• BHIM (Bharat Interface for Money) Aadhar Pay;

Exceptions: Rule 6DD of Income Tax Rules, 1962

Rule 6DD of the Income Tax Rules, 1962, is an exception to Sections 40A(3) and 40A(3A). The rule prescribes circumstances wherein the sub-section is not applicable. As per the rule, 

Any payment to:

• Reserve Bank of India
• Banking company under Section 5(c) of the Banking Regulation Act, 1949
• State Bank of India or its subsidiary bank
• Co-operative bank or land mortgage bank
• primary agricultural credit society or any primary credit society as under Section 56 of the Banking Regulation Act, 1949
• Life Insurance Corporation of India (LIC) 
• Government under legal tender
• Purchase products manufactured or processed without the aid of power in a cottage industry, to the producer of such products
• Cultivator, grower, or producer for purchase of agricultural or forest products, products of animal husbandry or dairy or poultry farming, fish or fish products and products of horticulture or apiculture
• an employee or the employee’s heir, on or in connection with retirement, retrenchment, resignation, discharge or death of a such employee, on account of gratuity, retrenchment compensation or similar terminal benefit and the aggregate of such sums is not more than Rs. 50,000.

Payment made by:

• letter of credit arrangements through a bank
• mail or telegraphic transfer through a bank
• book adjustment from one bank account to another
• bill of exchange payable to a bank
• Way of adjustment against the amount of any liability incurred by the payee for any goods supplied or services rendered by the assessee to such payee.

Payment made in a village or town where no bank serves on the date of payment and such a payment is made to any person who: 

• ordinarily resides, or 
• is carrying on any business, profession or vocation, in any such village or town.

Salary payment made by an assessee to his employee after deducting the income tax in accordance with the provisions of Section 192 (i.e. Deduction at source – Salary) of the Act, and 

• such an employee is temporarily posted for a continuous period of fifteen days or more in a place other than his usual place of duty, or on a ship; and 
• The employee does not maintain any account in any bank at such a place or ship.

Payment made by any person to his agent, who is required to make payment in cash for goods or services on behalf of such person or an authorised dealer or a money changer against the purchase of foreign currency or traveller’s cheques in the ordinary course of business. 

Section 40A(4) of the Income Tax Act, 1961

Section 40A(4) has been given an overriding effect over other laws in force and even contracts. It further gives the object of Section 40A(3) and 40A(3A) while simultaneously protecting assessees from suits or proceedings (such as breach of contract). Hence, even if a contract requires an execution cash payment of more than Rs. 10,000 in a day, the assessee can choose to make this payment by the mode of an account payee check drawn on a bank, an account payee bank draft, or an electronic clearing system through a bank account and would be safeguarded from litigation even though the payment mode term of the contract per se was not fulfilled. 

Section 40A(7) of the Income Tax Act, 1961

It comprises two clauses that are complementary and have to be read together. Section 40A(7)(a) is a negative clause, and Section 40A(7)(b) functions as its exception. 

As per Section 40A(7)(a), no deduction will be allowed in respect of any provision for payment of gratuity to employees on their retirement or termination. However, nothing in clause a applies to the provision of Section 40A(7)(b) wherein any payment of contribution sum towards an approved gratuity fund payable in the previous year or payment of gratuity liability, which arose during the previous year, is allowed as a deduction.

Section 40A(9) of the Income Tax Act, 1961

It allows contributions to an employee’s superannuation fund, provident fund, and gratuity fund as tax deductions for employers and employees. This is done to further the objective of these funds and encourage employers to contribute to these funds by incentivising the same. However, many instances of people playing the system to take advantage of the above scheme came to the government’s notice. For example, irrevocable discretionary trusts that give absolute discretion to trustees to utilise the trust property for the benefit of the employees without any scheme or safeguards. 

These trusts receive substantial amounts in the form of contributions and, consequently, are used as a vehicle for tax evasion by claiming deduction in respect of such contributions, which may even flow back to the employer in the form of deposits or investments in shares, etc.

To discourage such tricks, the government inserted it as a checkpoint. Sub-section 9 restricts the allowance of deduction of the sum paid for setting up or formation of, or contribution to, any fund, trust, company, an association of persons, body of individuals, or society registered under the Societies Registration Act, 1860, or any other institution except the ones made for the purpose mentioned in Section 36(1) clauses (iv), (iva) and (v):

Employer’s contribution towards a recognised provident fund or an approved superannuation fund, subject to 

• The prescribed limits of recognition of provident fund or approving superannuation fund, and 
• Conditions as the Board may think fit in cases where the contributions are not in the nature of annual contributions of fixed amounts or annual contributions fixed on some definite basis by reference to the income chargeable under the head salaries, the contributions or the number of members of the fund.

The employer’s contribution towards the pension scheme is referred to in Section 80CCD (Deduction in respect of contribution to the pension scheme of the Central Government), to the extent of 10% of the employee’s salary in the previous year. Herein, the salary calculation includes dearness allowance, if the terms of employment so provide, but does not include any other allowances and perquisites

Employer’s contribution towards an approved gratuity fund created for the exclusive benefit of employees under an irrevocable trust.

Section 40A(10) of the Income Tax Act, 1961

It provides that, concerning Section 40A(9), if the assessing officer is satisfied that the expenditure is bona fide or expended for the benefit of the welfare of the employees, then the amount is to be allowed as a deduction when computing income under the heading “profits and gains of business or profession” for the previous year in which the assessee laid down the expenditure. This is a relief section for bona fide cases. 

Section 40A(11) of the Income Tax Act, 1961

On a plain reading of the whole section together, it may appear to some that Section 40A(11) does not quite fit in with other provisions. While the rest of the provisions in the section talk about non-deductible expenses or payments, it talks about repayment claims. Though there may appear to be no nexus between this and the other sub-sections, Section 40A(11) plays a significant role in keeping the scale of the law balanced.

It provides that when an assessee has paid any sum to institutions referred to in subsection (9), then, notwithstanding anything contained in any other law or any instrument, he shall be entitled:

• to claim repayment of the paid but unutilised amount with these institutions. In this scenario, the unutilised amount has to be repaid as soon as possible.
•  to claim transfer of assets (being land, building, machinery, plant or furniture) acquired or constructed by the institutions in sub-section 9, out of the money paid by the assessee. When such a claim is made, the asset will be transferred to the assessee as soon as possible. In this case, the amount paid by the assessee exists as an asset with the institutions, compared to the above scenario wherein the said payment is not put to use by the institutions.

It has imposed a timeline so only bonafide cases can avail of the benefit. This timeline is in respect of payment of the sum to any institution referred to in sub-section 9.

Section 40A(13) of the Income Tax Act, 1961

It provides that no deduction or allowance is to be allowed in respect of a marked-to-market loss or other expected loss, except as allowable under clause (xviii) of sub-section (1) of Section 36. The crux of this section can be listed as Section 36 and “marked to market.”

Marked to Market

The value of an asset keeps fluctuating depending on the type of asset it is, usage, status, holding period, and much more. For this, various valuation methods were developed. One of them is marked to market. “Marked to market” is an accounting method of valuing an asset that represents the fair and accurate value of the asset. It basically means the asset is being marked or valued to its market value. To understand it more, it is important to delve into the “valuation of an asset” and then look into what exactly is “marked to market loss.”

Valuation of Asset

Assets can be valued in a balance sheet at numerous different prices, such as their historic cost, book value, market value and so on. Let us say, an asset has a historic cost of Rs. 10, but its current market value is Rs. 14. One of these valuations will be put down in the balance sheet, and consequently, the appreciation/depreciation will be calculated with this valuation as one of its factors. Consequently, every different valuation paints a different picture. For sake of uniformity in disclosure, this valuation method is decided by the Accounting Standards in place. To give an example, Short-term investments are valued at their current market price whereas buildings and machineries are valued at their historic cost.

Marked to market loss

However, as years go by, the status and holding position of the assets may change, which will warrant a change in the valuation amount of the asset in the balance sheet. For example, a long-term investment is converted into a short-term investment and vice versa. When a long-term investment is converted into a short-term investment, the concept of ‘Mark-to-Market’ comes into play. This concept, however, also comes into play in the yearly accounting of short-term investments as they are to be marked to their market price at the end of each financial year. ‘Mark-to-Market’ is as its name says, marking/valuing the asset to its market price. To illustrate,

• Short-term investment of stock was valued at Rs. 100 in the last financial year’s balance sheet. At this current financial year’s end, its market price has fallen down to Rs. 90. The short-term investment will be valued at Rs. 90.
• A long-term investment in debentures of Rs. 100 is getting redeemed three months from the end of the financial year. This change in the holding period caused the investment to be converted into a short-term investment. Its current price is Rs. 105. The investment will be valued at Rs. 105.

In the above-mentioned scenarios, the first scenario is an example of ‘marked to market loss’ which is also known as ‘Mark-to-Market loss’. Herein, purely in the accounting book, the assessee has suffered a loss of Rs. 10. The assessee has not faced a real liquid loss of Rs. 10 on his investment as he has not sold the investment yet. This loss will be recorded in the ‘Profit and loss account’ and ‘Investment account’ in the assessee’s books of accounts. No entry of this will be found in the cash or bank books. Even in the case of the second scenario, if the current price was Rs. 90, the same above-mentioned workings of the first scenario would be applicable. 

Hence, in conclusion, an assessee can not take deduction or allowance of any marked-to-market loss or other expected loss unless such losses are in accordance with the official government gazette notifications prescribing income computation and disclosure standards.

Exceptions to Section 40A of the Income Tax Act, 1961

A specified domestic transaction, which is conducted at arm’s length price, cannot be disallowed on the grounds of it being excessive or unreasonable to fair market value when the transaction is for the assessment year commencing on or before 1st April 2016.

Arm’s length price

The arm’s length price for this exception has to follow the definition laid down in Section 92F(ii). As per this, arm’s length price is the applied price or proposed to be applied price in a transaction undertaken by persons other than associated enterprises in uncontrolled conditions.

Associated enterprise

To give a general overview of associated enterprises, it is prudent to refer to its definition under the Income Tax Act. An associated enterprise gets its definition from Section 92A. An associated enterprise is described as per its relation to other enterprises, meaning:

I. An enterprise participating in the management, control or capital of the other enterprises either: directly, indirectly, or, through one or more intermediaries.

II. An enterprise wherein one or more persons participate in the management, control or capital  of the enterprise either: directly, indirectly, or, through one or more intermediaries

are the same persons who participate (directly, indirectly, or through one or more intermediaries) in the management, control, or capital of the other enterprise.

Specific domestic transaction

As for the main element of the exception, we find its definition under Section 92BA. As per Section 92BA, a specific domestic transaction comprises the following elements:

• Non-international nature of the transaction,
• The aggregate of the transaction(s) in the previous year exceeds the sum amount of twenty crores rupees, and
• It is one of the below-mentioned transactions:

1. Any expenditure in respect of which payment has been made or is to be made to a person referred to in clause (b) of sub-section (2) of section 40A;
2. Transaction referred to in Section 80A (Deductions in total income) or
3. Transfer of goods or services referred to in Section 80-IA(8), that is:
   1. Goods or services held for eligible business which is transferred to another business of the assessee;
   2. Goods or services held for another business which is then transferred to an eligible business.
4. Any transaction referred to in any section under 
   1. Chapter VI-A (Deductions to be made in computing total income) or 
   2. Section 10AA (Special provisions in respect of newly established units in Special Economic Zones), to which provisions of sub-section (8) or sub-section (10) of section 80-IA are applicable;
5. Section 80-IA(10): Any business transacted between the assessee and a person who either:
   1. Has a close connection with assessee, or 
   2. The profit generated by the business between them is more than ordinary and expected profits, which can arise in the eligible business.
6. Any transaction prescribed as a specified domestic transaction.

Case Laws

Principal Commissioner of Income Tax v. NEO Sports Broadcast (P.) Ltd. (2019)

Facts

The assessee had an agreement with one M/s. Nimbus Communication Limited for exhibiting cricket matches on television organised by the Board of Control for Cricket in India (BCCI). The assessee would pay a total of Rs.124.98 Crores to Nimbus for executing 8 such matches between India and England. The payment per match came to 24.99 Crores (rounded off).  For the same year, the assessee had to pay Rs.136.89 crores to Nimbus for covering 7 matches between the India-Sri Lanka-West Indies series.

One of the matches between India and England had to be cancelled for which the assessee received a credit note of Rs. 24.99 from Nimbus. In the same year, an additional match was played in the India-Sri Lanka-West Indies series for which an additional sum of Rs.19.55 crores was payable by the assessee. 

However, by an agreement between the assessee and Nimbus, the assessee forgoes the claim of Rs.24.99 Crores in lieu of Nimbus not demanding additional fees of Rs.19.55 Crores for the additional match. This difference of Rs 5.45 crores, which the assessee had to receive from Nimbus, but did not, was added to the assessee’s income by the assessing officer using Section 40A(2) of the Act.

Issue Raised

Whether the assessing officer was right in adding Rs. 5.45 Crores to the assessee’s income by invoking Section 40A(2).

Held

The Bombay High Court held that the assessing officer erred in doing so.

The assessing officer had not doubted the existence of mutual understanding between the assessee and BCCI, which gave the assessee the right to telecast live matches. Not only that, the assessing officer had also not made any addition for non-direction of TDS under Section 40(a) of the Act, but instead held that the expenses in question are not allowable because the same has been made in the absence of any expressed agreement between the parties. 

The Court also noted the Appellate Tribunal’s rejection observations, wherein it was found that the entire transaction was in the nature of a fresh business transaction under revised circumstances as a measure to adjust the revenue proceeds.

Deputy Commissioner of Income Tax (OSD), Mumbai v. Saraswat Co-operative Bank Ltd (2016)

Facts

The assessee paid Rs. 13,44,73,913 to its related enterprise for the provision of services pertaining to software and data entry, as well as the maintenance and management of the entire IT infrastructure of the bank. The assessee pays on a “per transaction basis” to its related enterprise. 

The assessee paid transaction charges of Rs. 1.38 per transaction to its related enterprise, while the same charge per transaction was reworked by the assessee based on the current cost and the projected operational cost of the related enterprise as well projected investment. The reworked charge per transaction was Rs. 4 per transaction.

The assessing officer observed that these costs paid by the assessee are unreasonable and excessive under the provisions of Section 40A(2)(b) of the Act as the payments are made to its related enterprise.

The assessing officer worked out the cost per transaction at arms’ length at Rs.1.64. The excessive expenses claimed by the assessee up to Rs. 7.95 crores were added to the income of the assessee by invoking provisions of Section 40A(2)(a).

Issue Raised

Whether cooperative society is covered under Section 40A(2)

Held

The Appellate Tribunal bench held that the provisions of Section 40A(2) are not applicable to co-operative societies and, therefore, the disallowance of expenditure for making payment to related enterprises for availing certain services was not sustainable.

Conclusion

While the Income Tax Act has given business owners and professionals many leeways to save tax in form of tax deductions and exemptions, some curbs on it are essential to keep in check the misuse of the levied benefits. Section 40A gives the assessing officer grounds to keep in check and disallow expenditures shown with the intent of evading taxes. Hence, discretion is given to the assessing officers as each case differs from one another. However, seeing case laws we can deduce that, the judiciary has time and again maintained the scale of the balance and deterred abuse of this power. 

We can also see the importance of knowledge of tax laws for assessees as sub-sections like 3 and 3A disallow certain types of expenditure, which the assessees may unknowingly make the whole year only to discover the tax loss they suffer due to a lack of tax saving strategy. Hence, it is highly recommended to be aware of the tax laws applicable to a person from the very beginning of the previous year.

Frequently Asked Questions (FAQs)

Is Section 40A applicable to the assessees not having ‘profits and gains from business or profession’ income?

Section 40A is not applicable to an assessee other than the one who has “profits and gains from business or profession” income. The legal reasoning behind this can be found in the case of N.M. Anniah vs. Commissioner of Income Tax (1975)

Is there any general assumption under Section 40A(9)

There is no general assumption under Section 40A(9). Hence, to disallow any expenditure under this, the assessing officer needs some evidence or proof to back up the disallowance.

Does the disallowance under Section 40A(3) and Section 40A(3A) apply in the case of crossed cheques or bearer cheques?

Yes, any amount paid by way of crossed cheques or bearer cheques attracts disallowance under Section 40A(3) and Section 40A(3A) as they are categorised as cash payments. Only account payee cheques are exempt from disallowance under Section 40A(3) and Section 40A(3A).

References

• Chaturvedi and Pithisaria: Income Tax Law
• https://wirc-icai.org/wirc-reference-manual/part3/amounts-not-deductible-under-section-40-40a-and-43b.html 

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