1992-VIL-541-KAR-DT

Equivalent Citation: [1993] 201 ITR 25, 108 CTR 57

KARNATAKA HIGH COURT

Date: 06.08.1992

COMMISSIONER OF INCOME-TAX

Vs

BANGALORE ARRACK COMPANY

BENCH

Judge(s)  : K. SHIVASHANKAR BHAT., R. RAMAKRISHNA 

JUDGMENT

The judgment of the court was delivered by

K. SHIVASHANKAR BHAT J. - This reference under section 256(2) of the Income-tax Act, 1961 ( " the Act " for short), involves the consideration of the following question referred to us :

"On the facts and in the circumstances of the case, was the Appellate Tribunal right in law in coming to the conclusion that Rs. 5,00,000 paid to Sashidaran is not opposed to public policy and therefore admissible as deduction under section 37(1) ? "

The question pertains to the assessment year 1982-83. The respondent-assessee claimed deduction of a sum of Rs. 5 lakhs stated to have been paid by the assessee to one Shashidaran of Trichur so that Shashidaran's father, Mr. Chattunni Menon, would not compete as a bidder in the auction whereby the Excise Department of the Government of Karnataka was selling the right to vend arrack in certain shops. According to the assessee this sum was paid ; and, therefore, a rival bidder was bought over and this was a business expenditure incurred by the assessee. The assessing authority disallowed the claim of the assessee by holding that Shashidaran was never a bidder and, therefore, the payment was not in connection with the business of the assessee. The Appellate Commissioner reversed this order holding that the father of Shashidaran was connected with a number of businesses in Kerala and that Shashidaran happened to be the partner of his father during the relevant season and that the payment in question was made as a consideration for Menon's withdrawing from the bid. Therefore, this was a business expenditure. The Appellate Tribunal has affirmed this view taken by the Appellate Commissioner. Before the Appellate Commissioner as well as before the Appellate Tribunal the main question was whether the demand was opposed to public policy. It was held by the appellate authority and the Appellate Tribunal that in case the bid offered by the assessee in the auction was too low or for any other reason not acceptable, it was open to the authority holding the auction to refuse to accept the bid. When such a power is found with the authority conducting the auction, it was not possible to hold that payment to eliminate a rival bidder from participating in the auction was barred by law and there was nothing to show that it was opposed to public policy.

On the admitted facts the main question regarding the deduction claimed by the assessee involves two questions and accordingly we reformulate the question referred to us as follows :

(1) Whether the payment made to a rival bidder not to participate in an auction held regarding the right to vend arrack is opposed to public policy ? and (2) Whether such a payment is capital expenditure or a revenue expenditure ?

Re : Public Policy:

It has been said that public policy is the principle which declares that no man can lawfully do that which has a tendency to be injurious to the public welfare and public policy comprehends only the protection and promotion of public welfare (vide Pollock and Mulla, Indian Contract and Specific Relief Acts, Tenth edition, page 260 ). The learned authors have referred to a decision of the Allahabad High Court and stated :

" Public policy is that principle of law under which freedom for contract or profit dealings are restricted by law for the good of the community. The very meaning of public policy is the interest of persons other than the parties ". (underlining is ours)

At page 287 of the same book the following statement is found :

" Agreements having for their object the creation of monopolies are void as opposed to public policy."

Admittedly, the assessee was participating in an auction to obtain the privilege of vending liquor. The question is whether elimination of a rival from competing with the auction will be opposed to public policy. This question cannot be considered in isolation de hors the nature of the trade, privilege or the right with respect to which the auction is held. If the subject-matter involved is a trade which could be normally considered as a lawful trade and the individual has a fundamental right to carry on such a trade, eliminating a rival trader from operating in the same field will be incidental to the exercise of that fundamental right. On the other hand, if the subject-matter is loosely referred to as trade or business but actually is not recognised as trade or business in respect of which no fundamental right exists and only the State has the exclusive privilege to indulging in such a trade or business, different considerations should prevail. In the latter case, the State may engage in this trade of a pernicious character only because it is inevitable to do so having regard to the public interest such as the absolute need to raise revenue for the State which in turn is utilised for the public welfare. It may also be a case where the State engages itself in such a business or trade to minimise the public harm, which otherwise would result to the public, if the trade or business is carried on by the citizens at large.

It is now quite firmly established that none has a fundamental right to carry on the trade in vending liquor. The right given to trade in this regard is actually a privilege conferred by the State and normally these privileges are conferred by auctioning the right to vend, in the case of arrack. In Jagadale and Sons v. State of Karnataka, AIR 1990 Kar 251 ; ILR 1990 Kar 101, a Bench of this court observed at page 119 ( at page 259 of AIR 1990 Kar):

" It is, thus clear that none has a fundamental right to trade or do business in liquor. As in the case of gambling activities, though dealing in liquor has 'the external forms, formalities and instruments of trade', the activities are in fact 'extra-commercium', as observed, regarding gambling activities in State of Bombay v. R. M. D. Chamarbaugwala, AIR 1957 SC 699 and applied to liquor trade in Har Shankar v. Deputy Excise and Taxation Commissioner, AIR 1975 SC 1121. Liquor cannot be treated as recognised article of commerce or merchandise and hence dealing in liquor cannot be conferred with the status of a ' trade ', ' business ' or ' commerce falling within those concepts in the Indian Constitution. "

The Bench also pointed out that the fundamental right is a right which inheres in every person in the country and recognised by the country. Fundamental rights cannot be created by a statute. A right or privilege created by the Legislature or by a statute will be a statutory right ; it cannot have the status of a fundamental right. Again at page 120 (at page 259 of AIR 1990 Kar), it was held:

"To reiterate, we hold that the business in liquor is not per se lawful except when carried on under licence or permit and thus no right inheres in any individual to carry on trade in noxious or dangerous drugs. A licence granted for carrying on trade in such noxious drugs allows the person or licensee to carry on the activity of dealing in liquor. But grant of licence to carry on such activity does not by itself take away the pernicious character of the activity as such. As it is not possible to eradicate this evil, it is tolerated by the grant of licence. Neither is the inherent obnoxious quality of the activity erased nor a socially acceptable characteristic injected into it, by the licence. The moment the licence expires, cancelled or withdrawn, the right or privilege gets extinguished. Therefore, such privilege granted cannot be elevated to the status of a right either for the purpose of article 19(1)(g) or for the purpose of article 301. The State may completely prohibit the trade or impose severe restrictions on such business. Only those persons who are ready and willing to comply with such strict, severe and stringent conditions are enabled to carry on the activity. This position is made clear by the Supreme Court itself in Sat Pal and Co. v. Lt. Governor of Delhi, AIR 1975 SC 1550(which we have already referred to and in which the law has been exhaustively considered by the Supreme Court.)"

Therefore, it is clear that no fundamental right is created by the purchase of a right or the privilege to vend liquor in an auction. The purpose of the auction is to enable the State to obtain the highest revenue possible for the benefit of the State. In Har Shankar v. Deputy Excise and Taxation Commissioner, AIR 1975 SC 1121, the above idea is conveyed by the Supreme Court, after referring to the principle stated in volume 30 of American Jurisprudence. At page 1132, the Supreme Court said :

" There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants-its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. In American Jurisprudence, volume 30, it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is privilege and not a right, subject to governmental control ( at page 538 This power of control is an incident of the society's right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime. "

What the bidder pays to the State is not only towards the liquor to be obtained but it would include normally the price for the privilege which he obtains by being the successful bidder in the auction.

It is clear, therefore, that there should be a fair auction of the right to vend liquor and the fairness should be decided not only with reference to the competing bidders but also with reference to public interest. The public revenue is affected either way as a result of the auction. Any attempt made which has a bearing on the ultimate result of the auction and the net revenue that will be collected by the State will be an attempt on public interest. It is of utmost importance that there should be as many bidders as possible in such an auction, so that maximum revenue could be obtained by the State. Purchasing of rival bidders, therefore, on the face of it, will be harmful to public interest and the very object of conducting the auction gets defeated or diluted when intending bidders are sought to be kept away by one of the bidders.

On the admitted facts, in the instant case, the assessee has purchased a rival bidder so that he could not come forward to participate in the auction. We are of the firm view that this is contrary to public interest as well as public welfare and, therefore, opposed to public policy. The payment made which, on the face of it, is contrary to public policy cannot be recognised as a valid payment for the purpose of the Income-tax Act.

In CIT v. Kodandarama and Co. [1983] 144 ITR 395, the Andhra Pradesh High Court had an occasion to consider the principle involved in the application of the doctrine of public policy. In the said case, the assessees made certain payments by way of contributions to the Andhra Pradesh Welfare Fund to enable them to obtain export permits issued by the Collector. They claimed these payments as deductible items under section 37(1) of the Income-tax Act. This contention was negatived by the High Court. Jeevan Reddy J., speaking for the Bench, observed at page 407 thus: "We can do no better than answer this contention in the words of Subba Rao J. (as he then was) in Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781. The learned judge said ( at page 795 ) :

The doctrine of public policy may be summarised thus : Public policy or the policy of the law is an illusive concept ; it has been described " as untrustworthy guide ", " variable quality ", " uncertain one ". " unruly horse ", etc. ; the primary duty of a court of law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the court may relieve them of their duty on a rule founded on what is called the public policy ; for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies ; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents ; the principles have been crystallised under different heads and though it is permissible for courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public ; though the heads are not closed and though theoretically it may be permissible to evolve new head under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days.'

We are acutely conscious of the fact that public policy should not depend upon 'the idiosyncratic inferences of a few judicial minds' and that moral indignation must not be mistaken for 'public policy' ; but, at the same time, this should not deter us from putting the clear public interest above the business expediency of businessmen, since, by failing to do so, we would become a party to, and acquiesce in, a public wrong. "

The Bench also observed earlier that there is no qualitative difference between an agreement or contract opposed to public policy and an agreement or contract forbidden by law ; the difference is only a matter of degree.

Re : Capital expenditure or revenue expenditure The distinction between a capital expenditure and revenue expenditure has been the subject-matter of several decisions and generally it is not possible to state the principle involved in a simple sentence. The decision will have to be arrived at by considering analogous cases. However, one could start the journey with a broad proposition that whatever is expended to obtain an asset used in a trade or business is a capital expenditure ; however, if the expenditure is incurred in the course of the business to earn the current income, prima facie it may be a revenue expenditure. The assessee has contended that payment made to avoid a rival trader from competing in the business has a direct impact on the current income and should be treated as a revenue expenditure. We are not inclined to accept this contention. In CIT v. Coal Shipments P. Ltd. [1971] 82 ITR 902, the Supreme Court was concerned with the assessee which exported coal from India to Burma. An understanding was arrived at with another exporter also regarding the export under which the assessee made certain payments to the rival exporter. The question was whether these payments made for warding off competition were capital or revenue expenditure. The Supreme Court found that the payments had a direct nexus with the current income and, therefore, the payment in question was a revenue expenditure. At page 907, it was observed :

"Judicial decisions have, from time to time, laid down some broad principles in order to determine whether an expenditure is of a capital nature or revenue nature. Despite the enunciation of those principles, it is not always easy to decide the question in the context of the circumstances of an individual case. Considerable difficulty is experienced in border line cases. It was in this connection that Hidayatullah 1. ( as he then was ) observed in Abdul Kayoom v. CIT [1962] 44 ITR 689, 703 (SC) that:

'None of the tests (laid down in various authorities) is either exhaustive or universal. Each case must depend on its own facts, and close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases . . . by matching the colour of one case against the colour of another.'

It may be apposite at this stage to refer to some of the broad tests which have been laid down to distinguish capital expenditure from revenue expenditure. In the case of Atherton v. British Insulated and Helsby Cables Ltd. [1925] 10 TC 155, 192 (HL), Lord Cave L.C. laid down the following criterion which has been referred to in most of the subsequent cases :

'But when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital.

The courts have to bear in mind, according to the dictum laid down in the above case, whether it was an expenditure forming 'part of the cost of the income-earning machine or structure' as opposed to part of 'the cost of performing the income-earning operations'. In that case, the House of Lords dealt with a fund which had been created by the respondent company as a nucleus of a pension fund for its employees. After handing over the money to trustees for the employees, the company claimed that the money should be charged to revenue. The claim of the company was rejected by the House of Lords on the ground that the payment of money created for itself an enduring benefit or advantage which was of a capital nature.

Again, at page 909, it was observed: "There are some other tests like those of fixed capital and circulating capital for determining the nature of the expenditure. An item of disbursement can be regarded as capital expenditure when it is referable to fixed capital. It is revenue when it can be attributed to circulating capital. It is not the case of any party that this test of fixed and circulating capital can be invoked in this case nor has reference been made to some of the other tests. The case which has been set up on behalf of the Revenue is that, as the object of making the payments in question was to eliminate competition of a rival exporter, the benefit which enured to the respondent was of an enduring nature and, as such, the payment should be treated as capital expenditure. We find ourselves unable to accede to this contention because we find that the arrangement between the respondent and M/s. H. V. Low and Co. Ltd. was not for any fixed term but could be terminated at any time at the volition of any of the parties. Although an enduring benefit need not be of an everlasting character, it should not, at the same time, be so transitory and ephemeral that it can be terminated at any time at the volition of any of the parties. Any other view would have the effect of rendering the word 'enduring' to be meaningless. No cogent ground or valid reason has been given to us in support of the contention that, even though the benefit from the arrangement to the respondent may not be of a permanent or enduring nature. The payments made in pursuance of that arrangement would still be capital expenditure. "

It should be noted that in the above case the arrangement between the assessee and the rival exporter was not for any fixed term but could be terminated at any time and that the payments made to the rival were related to the actual shipment of coal in the course of trading activities of the assessee and were not considered related to or tied up in any way to any fixed sum agreed to between the parties. The Supreme Court, however, pointed out that payment made to ward off competition in business to a rival would constitute capital expenditure if the object Of making that payment is to derive an advantage by eliminating the competition over some length of time ; the same result would not follow if there is no certainty of the duration of the advantage and the same can be put to an end at any time. How long the period of contemplated advantage should be, in order to constitute enduring benefit, would depend on the circumstances and the facts of each individual case. Although an enduring benefit need not be of an everlasting character it should not be so transitory and ephemeral that it can be terminated at any time at the volition of any of the parties.

The test actually would vary depending upon the nature of the business acquired. When the period of the business and the duration during which the right to carry on the trade is itself limited, the elimination of a rival from competing, while obtaining the right to trade has nothing to do with the expenditure incurred in the course of carrying on the trade. The expenditure here is incurred at the threshold to obtain the right to vend liquor. It is in the nature of investment made to set up the business and, therefore, should be treated as a capital investment.

The decision of the Privy Council reported in Commissioner of Taxes v. Nchanga Consolidated Copper Mines Ltd. [1965] 58 ITR 241 strongly relied upon by learned counsel for the assessee will be of no avail to the assessee. In the said case the assessee bought the right to have the rival operator out of production for one year, therefore, the expenditure had no true analogy with expenditure for the purpose of acquiring a business or the benefit of a long-term or enduring contract. The Privy Council held that it was a cost incidental to the production and sale of the output of the mine operated by the assessee. At page 251, it was observed

"Again, courts have stressed the importance of observing a demarcation between the cost of creating, acquiring or enlarging the permanent (which does not mean perpetual ) structure of which the income is to be the produce or fruit and the cost of earning that income itself or performing the income earning operations. Probably this is as illuminating a line of distinction as the law by itself is likely to achieve, but the reality of the distinction, it must be admitted, does not become the easier to maintain as tax systems in different countries allow more and more kinds of capital expenditure to be charged against profits by way of allowances for depreciation, and by so doing recognise that at any rate the exhaustion of fixed capital is an operating cost. Even so, the functions of business are capable of great complexity and the line of demarcation is sometimes difficult indeed to draw and leads to distinctions of some subtlety between profit that is made ' out of ' assets and profit that is made ' upon ' assets or 'with' assets. It does not settle the question, for instance, to say merely that an expenditure has been made to acquire a 'source of income', as the appellant says here, unless one is clear that some forms of circulating capital itself, e.g., labour, raw material, stock-in-trade, are not themselves to be regarded as such a source. "

At page 253, the factual basis is brought out thus:

" What Nchanga did was to charge its 1958-59 production with the payment of this money in order to settle its share of the group's production programme in the way that suited it best. The payment was wholly related to and an incident of its output of the year, and it is of no moment for this purpose that the factors of the calculation that produced the sum were certain financial requirements of Bancroft itself. Nchanga was the assessee and Bancroft was the recipient of payments).

The settled distinction between the two types of expenditure is brought out by the Supreme Court in Empire jute Co. Ltd. v. CIT [1980] 124 ITR 1. At page 10, the Supreme Court observed :

What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessee's trading operations or enabling the management and conduct of the assessee's business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is, therefore, not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case.

The decision of the Kerala High Court reported in V Damodaran v. CIT [1967] 64 ITR 26 no doubt to some extent supports the assessee's contention. The assessee, a forest contractor, was carrying on business in timber; he paid money to persuade the rivals not to compete in an auction held by the forest department. The High Court treated this as a payment made to secure a portion of the stock-in-trade of timber business at an advantageous price and, therefore, the payments made to the rival contractors were held as a business expenditure. It is quite possible to distinguish this on facts because, in the instant case before us, we are concerned with an expenditure incurred to obtain the privilege to vend in liquor, while in the case before the Kerala High Court it was a case of an expenditure incurred to obtain the goods in question. CIT v. Bowrisankara Steam Ferry Co. [1973] 87 ITR 650 is another decision of the Andhra Pradesh High Court. The assessee carried on business as a ferry contractor plying launches across a river. To obtain this right he had to participate in an auction. The assessee made payments to some prospective bidders in order to prevent them from competing at the auction. These payments were treated as revenue expenditure by the High Court. The decision of the Kerala High Court in Damodaran's case [1967] 64 ITR 26 was followed. Thereafter, while concluding, the Bench observed that the question must be Viewed in the larger context of business necessity or expediency. There is no reference to the decision of the Supreme Court rendered in Coal Shipments P. Ltd.'s case [1971] 82 ITR 902. With utmost respect we are unable to agree with the conclusion reached by the Andhra Pradesh High Court in this case.

The decision of the Allahabad High Court in Neel Kamal Talkies v. CIT [1973] 87 ITR 691 supports the case of the Revenue in the instant case. Certain payments were made to a rival cinema exhibitor. The assessee agreed to pay every month for a period of five years to the rival operator so that the latter would not exhibit any film at his theatre. The Allahabad High Court held that it was a capital expenditure because the payment was made under an agreement which extended for five years and resulted in the elimination of competition. A Bench of the Rajasthan High Court also took a similar view in Bikaner Gypsum Ltd. v. CIT [1969] 73 ITR 778. The payments were made by the assessee to create a monopoly right in the assessee and the payments were by way of incurring legal expenditure. The High Court held that in undertaking the litigation, the assessee was paving the way to secure contracts of lease of other plots of land, to ward off competition and to earn further profits and, therefore, it was a capital expenditure. To the same effect is the view expressed by the Gujarat High Court in Gujarat Mineral Developement Corporation Ltd. v. CIT [1983] 143 ITR 822. At page 829, the Bench quoted the following observations of the Supreme Court made in Assam Bengal Cement Co. Ltd. v. CIT [1955] 27 ITR 34 : In cases where the expenditure is made for the initial outlay or for extension of a business or a substantial replacement of the equipment, there is no doubt that it is capital expenditure. A capital asset of the business is either acquired or extended or substantially replaced and that outlay whatever be its source whether it is drawn from the capital or the income of the concern is certainly in the nature of capital expenditure. The question, however, arises for consideration where expenditure is incurred while the business is going on and is not incurred either for extension of the business or for the substantial replacement of its equipment. Such expenditure can be looked at either from the point of view of what is acquired or from the point of view of what is the source from which the expenditure is incurred. If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. " At page 830 the following observations were made by the Gujarat High Court.

It becomes obvious from the aforesaid tests that if the expenditure is incurred with a view to bringing into existence an asset or an advantage for the enduring benefit of the trade, it would, unless the circumstances show otherwise, be in the nature of a capital expenditure. Where the expenditure is incurred for extension of a business or for a substantial replacement of the equipment, it would again be capital expenditure. If the expenditure is incurred with a view to acquiring a capital asset, such expenditure would also be in the nature of capital expenditure. If any asset or advantage for the enduring benefit of the business is acquired or brought into existence, the amount spent, no matter from which source, would be in the nature of capital expenditure and not revenue expenditure. It is not necessary in all cases that the amount must be paid once and for all because in a given case the payment may be spread over a period mutually agreed upon. The test is that if the expenditure is incurred in the direction of acquisition of a capital asset, or advantage for the enduring benefit of the business, such expenditure would be in the nature of capital expenditure even if it is not incurred once for all and is spread over a period mutually agreed upon. It would depend on the aim and object of the expenditure for (f the expenditure is incurred for the acquisition of a capital asset, it would be in the nature of capital expenditure : but if, on the other hand, it is incurred for running the business or working it with a view to producing profits, it would be a revenue expenditure. " (emphasis supplied ) At page 835, the High Court laid down five tests:

(1) When expenditure is incurred not only once and for all, and with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, ordinarily such expenditure is on capital account.

(2) Where the expenditure is incurred in the field of fixed capital, it is on capital account, but if it is a part of the circulating capital, it is on revenue account.

(3) If the expenditure is a part of the working expenses in ordinary commercial trading, it is not capital but revenue expenditure.

(4) If the expenditure is incurred for the initial outlay or for extension of business or substantial replacement of equipment, it is capital expenditure but if it is incurred for running the business or is laid out as part of the process of profit-making, it is revenue in character, and

(5) If expenditure is incurred for ensuring the regular supply of raw material, may be for periods extending over several years, it is on revenue account. "

We respectfully agree with the above enunciation of the tests. The expenditure incurred in the instant case was incurred once and for all with a view to bring into existence the asset or the advantage of obtaining the privilege to vend liquor for one year. The entire business itself was of one year's duration. The expenditure incurred to obtain this right, or privilege cannot be just treated as expenditure incurred only for one year because the very business asset had a life of one year only. Therefore, the contention of the assessee that the expenditure was in the nature of a revenue expenditure cannot be accepted. The second question formulated by us also has to be answered in favour of the Revenue.

In the result, the broad question referred to us by the Appellate Tribunal is answered in the negative and against the assessee.

 

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