1981-VIL-613-BOM-DT

Equivalent Citation: [1983] 141 ITR 399, 27 CTR 207, 8 TAXMANN 182

BOMBAY HIGH COURT

Date: 24.09.1981

ADDITIONAL COMMISSIONER OF INCOME-TAX

Vs

INDIA UNITED MILLS LIMITED

BENCH

Judge(s)  : D. M. REGE., S. K. DESAI

JUDGMENT

The judgment of the court was delivered by DESAI J.-In this reference the assessees are the India United Mills Ltd. They were represented by M/s. Mulla and Mulla and Craigie, Blunt and Caroe, advocates, but they have taken a discharge this morning from us, stating that they have no instructions from the assessee.

We are concerned in this reference with the assessment year 1-961-62. In that year the assessee, a mill company, owned various establishments, namely, five textile mill units and a dye works, with a capacity of over 2,00,000 spindles and over 600 looms.

In the weaving sheds of mills Nos. 2, 3 and 4 and in the folding, sizing and drawing depts. the assessee-company replaced ordinary lighting by fluorescent tubes, incurring an expenditure of over Rs. 2,15,000 for the purpose. According to the ITO, this expenditure brought to the assessee an advantage of enduring nature and it was of a capital nature. The AAC agreed with the view taken by the ITO. The matter was carried to the Income-tax Appellate Tribunal, and the Tribunal upheld the contention of the assessee, holding that this was revenue expenditure covered by s. 10(2)(xv) of the Indian I.T. Act, 1922. However, the claim for allowance under s. 10(2)(v) of the said Act was rejected.

Certain old worn out doors were removed by the assessee-company and approved fire-proof doors were substituted instead, as per factory rules. In this connection, the assessee incurred an expenditure of Rs, 18,506. The assessee-company also incurred an expenditure of Rs. 10,192 for the renewal of the roof of the bleaching house. The aim of this was to get more light into the factory. These items were also claimed by the assessee as revenue expenditure. The ITO disallowed the same on the ground that it was of a capital nature. The AAC agreed with the ITO, but, on appeal, the, Tribunal upheld the contention of the assessee. This was also allowed in terms of s. 10(2)(v) of the Indian I.T. Act, 1922.

In addition to this claim, the assessee-company had incurred the following legal expenses set out in para. 14 (of the statement of the case) :

 " (1) Rs. 54,221 :    Legal fees paid for conducting income-tax appeals.

   (2) Rs. 13,104 :    Legal fees paid to solicitors for appearance

                       before the Collector of Bombay in connection

                       with the threatened attachment of property

                       in the course of recovery of income-tax

                       demands relating to the assessment years

                       1946-47 to 1956-57. "

Both these items were disallowed by the ITO, and this disallowance was sustained by the AAC. The Tribunal, however, found in favour of the assessee.

It is from the decision of the Tribunal that five questions have been referred to us by the ITO :

" (1) Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 2,16,045 incurred by the assessee-company on replacement of ordinary lighting by fluorescent lighting is deductible as revenue expenditure under section 10(2)(xv) of the Indian Income-tax Act, 1922, or as revenue repairs under section 10(2)(v) of the said Act ?

(2) Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 18,506 incurred on the substitution of old worn out doors by fire-proof doors is admissible as deduction as 'current repairs' under section 10(2)(v) of the Indian Income-tax Act, 1922, or as revenue expenditure under section 10(2)(xv) of the said Act ?

(3) Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 10,192 incurred by way of renewal of roof of the bleaching house is admissible as deduction as 'current repairs' under section 10(2)(v) of the Indian Income-tax Act, 1922, or as revenue expenditure under section 10(2)(xv) of the said Act ?

(4) Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 54,221 by way of legal fees paid for conducting income- tax appeals is allowable under section 10(2)(xv) of the Indian Income-tax Act, 1922 ?

(5) Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 13,104 by way of legal fees paid to solicitors for appearance before the Collector of Bombay is admissible as deduction under section 10(2)(xv) of the Indian Income-tax Act, 1922 ? "

As far as questions Nos. 4 and 5 are concerned, they would appear to be concluded in favour of the assessee by the decision of this court in CIT v. Gannon Dunkerley & Co. Ltd. [1979] 119 ITR 595. These questions, therefore, will have to be answered in the affirmative and in favour of the assessee.

As far as question No. 1 is concerned, it has been found by the Tribunal that under the improved system better lighting was provided to the workers. The Tribunal went on to add that it was not possible to speculate how far efficiency improved. In the view of the Tribunal, the mere fact that the expenditure bad brought the benefit of a larger life to the asset and better service would not make the expenditure capital in nature.

Section 10(2)(xv) of the Indian I.T. Act, 1922, requires that the expenses must be laid out for the purpose of business of the assessee, and further that they should not be in the nature of capital expenditure.

It is impossible to hold that the amounts have not been expended for the purpose of the business of the assessee. The learned counsel appearing for the Department, however, submitted that the expenses must be regarded as capital in nature. For this he relied on the largeness of the expenditure. He also disputed the approach of the Tribunal and submitted that by incurring this expenditure the assessee had secured an enduring advantage of better lighting condition and better working condition.

These arguments have been duly considered by the Tribunal, but merely because of these advantages it is not possible to hold that any asset of an enduring nature has been secured by the assessee. In CIT v. Excel Industries Ltd. [1980] 122 ITR 995 (Bom), the payment made to an electricity board towards the cost of providing an overhead service line was accepted as revenue expenditure and, hence, an allowable deduction. This was a decision of this court. In Hindustan Times Ltd. v. CIT [1980] 122 ITR 977 (Delhi), the amounts paid to the municipality, and the expenditure incurred for a change-over from direct current to alternate current system were allowed as business expenditure. The conclusion reached by the Tribunal that, the expenditure was capital in nature was dissented from by the Delhi High Court, which held that the expenditure could not be said to be: laid out either to acquire an asset or to acquire any advantage of an enduring nature. The case before us is not identical with the case before the earlier Bench or before the Delhi High Court, but the principles laid down in the above cases are applicable. We are in concurrence with the view of the Tribunal that there was no capital asset acquired nor could the assessee be said to acquire any advantage of an enduring nature. If so, the Tribunal was right in allowing the expenditure under s. 10(2)(xv) of the Indian I.T. Act, 1922. Question No. 1 also will have to be answered in favour of the assessee.

As regards questions Nos. 2 and 3, it is difficult to find anything to be said in favour of the Commissioner of Income-tax. These are obviously current repairs, and the Tribunal was right in allowing the same under s. 10(2)(v) of the Indian I.T. Act, 1922.

In the result, the five questions referred to us are answered as follows :

Question No.1 :

Allowable under s. 10(2)(xv) of the Indian I.T. Act, 1922. In favour of the assessee.

Question No. 2 :

Allowable under s. 10(2)(v) of the Indian I.T. Act, 1922. In favour of the assessee.

Question No. 3 :

Allowable under s. 10(2)(v) of the Indian I.T. Act, 1922. In favour of the assessee.

Question No. 4 :

In the affirmative and in favour of the assessee.

Question No. 5 :

In the affirmative and in favour of the assessee.

There will be, however, no order as to costs

 

 

 

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