Vildirect: IncomeTax-caselaws-1998-VIL-40-SC-DT

1998-VIL-40-SC-DT

Equivalent Citation: [1998] 231 ITR 842 (SC)

Supreme Court of India

Date: 13.05.1998

HASIMARA INDUSTRIES LTD.

COMMISSIONER OF INCOME-TAX AND ANOTHER

BENCH

SUJATA V. MANOHAR. and S. RAJENDRA BABU.

JUDGMENT

2. When M/s Saksaria Cotton Mills Ltd. was in the process of liquidation the assessee-company, which owned tea estates filed a scheme in those proceedings and entered into a leave and licence agreement with that company. Originally the agreement was for a period of three years from 1st April, 1963 to 31st March, 1966, which was extended by mutual agreement upto 30th June, 1966. Clause 13, which is relevant for our purpose in the agreement, reads as follows :

"In the event of any new and complete unit or plant and/or machinery and/or reequipment being installed by the licencee at the licensee's own costs within the licensed premises, no depreciation will be paid by the licensee to the licensor in respect thereof and on the expiry of the period of the licence or its earlier determination by the licensee, the licensee will be entitled to remove and take away at the licensee's own cost such new plant, machinery and equipment provided that the licensee will in that event restore the licensed premises to the condition in which they were at the time of commencement of the license and make good the damage, if any, caused to the licensed premises by removal of such new plant, machinery and equipment. In the event of any part or parts of any of the mills machinery, plant, equipment, fittings and fixtures being provided by the licensee in replacement of any existing part or parts of such machinery, the licensee will be entitled in lieu thereof to retain such sold part or parts of such machinery so replaced and to deal with the same in such manner as the licensee deems fit. If the licensee desires that the licensor shall bring any new plant, machinery or equipment or unit it will be in the absolute and uncontrolled discretion of the licensor whether to do so or not and on such terms as may be agreed to at that time."

The amount of Rs. twenty lakhs is said to have been given by way of advance in terms of the said clause.

Before the AO, the assessee claimed the advance of Rs. twenty lakhs as deductible on the ground that it became irrecoverable on account of the incapacity of M/s. Saksaria Cotton Mills Ltd. to repay the same. The AO disallowed the claim stating that the amount represented as advance to M/s Saksaria Cotton Mills Ltd. for modernisation of its factory and the said amount was not taken into consideration in computing the income of the assessee in any assessment year. He also held that the said sum did not represent the money lent in the ordinary course of business. He further noticed that even otherwise the said sum was not entitled to deduction because it had not become a bad debt in the relevant year of account and the assessee made no effort to recover the same. On appeal against the assessment order, the AAC held that the advance given by the assessee-company could not be recovered from M/s Saksaria Cotton Mills Ltd. and had to be allowed as a deduction as revenue expenditure. He was of the view that assessee-company could not hve removed the plant and machinery and the debenture-holders of M/s Saksaria Cotton Mills Ltd. had lien over the entire plant and machinery. Thus, the said amount represented loss incurred by the assessee in the course of carrying on of its business and should be allowed as deduction on account of ordinary commercial principles. The matter was carried in appeal by the Department to the Tribunal. The Tribunal noticed that the said amount of Rs. twenty lakhs which was advanced was to be treated as capital investment as per the resolutions of the board of directors of the assessee-company. Thus, the assessee had acquired an advantage of enduring nature and the claim of the assessee was not allowable as business loss. The amount having been spent on the improvement of the mill was not advance in the ordinary course of assessee/s business nor was it incidental to such business.

3. Aggrieved by the order of the Tribunal on a reference made to the High Court at the instance of the assessee, the High Court held that it is a settled principle that loss of money lent or advanced would be a capital loss unless the loan was made by a moneylender for whom money was his stock-in-trade and such a situation would arise in case of a banking or moneylending business where money is treated as stock-in-trade. It was also noticed by the High Court that although assessee had some moneylending business, the amount of Rs. twenty lakhs was not lent to M/s Saksaria Cotton Mills Ltd. as a loan transaction, but pursuant to cl. 13 of the agreement. It was also noticed by the High Court that it was not a trade debt and the assessee advanced a sum of Rs. twenty lakhs so that new plants and machinery could be bought by M/s Saksaria Cotton Mills Ltd. for the benefit of the assessee during the period of the agreement. Thus, the assessee had the advantage of using a new and more modern profit-making apparatus. When the company itself had not treated the advance of Rs. twenty lakhs to M/s Saksaria Cotton Mills Ltd. as by way of a loan transaction and the amount had been treated by the assessee as the capital advance as evidenced by the resolutions passed by the board of directors at the time of granting of loan, the High Court held that the findings of the Tribunal should be affirmed and answered the question referred for its opinion against the assessee. It is against this order the present appeal is filed by special leave.

4. Ms. Radha Rangaswami, learned counsel for the appellant, submitted that though the assessee had made a lump sum payment not in order to gain an enduring benefit, but only to augment income in the course of its ordinary business and sought exemption was not capital in nature being allowable as revenue expenditure and in terms of s. 37 of the IT Act.

5. The learned counsel for the Department contended that in view of the decision of this Court in Hasimara Industries Ltd. vs. CIT & Anr. (1998) 147 CTR (SC) 98 : (1998) 1 SCC 503 in the very case of the assessee, there was hardly anything left for decision by us. He submitted that the agreement which is subject-matter of consideration in these proceedings was also considered in that decision and in the context of another transaction had been interpreted.

6. Undaunted by the submission of the learned counsel for the Department, Ms. Radha Rangaswami persisted in her argument. She relied on Alembic Chemical Works Co. Ltd. vs. CIT (1989) 77 CTR (SC) 1 : (1980) 177 ITR 377 (SC) : TC 16R.1277. That was the case where the assessee who was engaged in manufacture of antibiotics including penicillin acquired know-how to produce higher yield and sub-culture of strains of penicillin and there was no evidence to indicate that this was not in the line of existing manufacturing operations and, therefore, this Court took view that the payment was made in the course of carrying on an existing business and the outlay was incurred for the purpose of acquiring the technical know-how in relation to its business and considering the rapid strides in science and technology is to pigeonholing an outlay, such as in this case as capital. It was on that basis the Court held that though lumpsum payment had been made once for all it was not capital in nature and attracted the deduction under s. 37 of the IT Act.

Again, the learned counsel for the assessee relied upon the decision in CIT vs. Malayalam Plantations Ltd. (1964) 53 ITR 140 (SC) : TC 16R.347 wherein estate duty was paid on the death of non-domiciled shareholders and was "for the purpose of the business" and "for the purpose of earning profits" and therefore, allowable as business expenditure. However, that is not the position in the present case wherein the assessee has given an advance in a sum of Rs. twenty lakhs for a purpose not in the line of its business as found by the Tribunal which is the last fact finding authority. In Empire Jute Co. Ltd. vs. CIT (1980) 17 CTR (SC) 113 : (1980) 124 ITR 1 (SC) : TC 16R.953, certain loom hours were purchased by one member of an assessee from another member and the members in the association had bound themselves to work their mills for limited hours per week and in those circumstances the price paid was held to be in the nature of revenue expenditure in terms of s. 10(2)(xv) of the Indian IT Act, 1922 and not deductible. The test adopted in that case is the nature of the advantage in a commercial sense and where it is only the advantage in the capital field, the expenditure cannot be allowed, but 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 purchase of loom hours did not create any new asset and there was no addition to or expansion of the profit-making apparatus of the assessee nor the permanent structure of which the income was the product remained the same. It was not enlarged nor did the assessee acquire a source of profit of income when it purchased the looms in question. The expenditure incurred was primary and essentially related to the operation or working of the looms which constituted the profit-making apparatus of the assessee and was expenditure laid out as part of the process of profit-earning. It was on that basis the claim was allowed. Therefore, that decision will not help the assessee in the present case.

7. In CIT vs. Hasimara Industries Ltd. (1989) 175 ITR 477 (Cal) : TC 14R.585, the very agreement with which we are concerned, itself was subject-matter of consideration by the High Court. Pursuant to the agreement, amount was deposited with the cotton mills for acquiring profit making-apparatus. Then there was closing down of the cotton mill and loss of deposit constituted capital loss. It was held in that case that the assessee's ordinary business was manufacture and sale of the tea and it started cotton manufacturing business acquiring the right to operate the mill belonging to another company for a specified period under a leave and licence agreement after depositing certain sum in terms of the agreement. After the expiry of the agreement, M/s Saksaria Cotton Mills Ltd. itself managed the cotton mills but suffered loss and went into liquidation. Consequently, the sum deposited by the assessee remained unpaid. In those circumstances, it was held that the loss of the deposit was in the capital account and not business expenditure of assessee. That matter was carried in appeal to this Court in Hasimara Industries Ltd. vs. CIT & Anr. (supra) and this Court upheld the view taken by the High Court.

8. It is clear from the findings recorded by the Tribunal and the High Court that the assessee's business is manufacture and sale of tea and is not engaged in cotton manufacturing business at all; that while it intended to enter into cotton manufacturing purposes did not set up a cotton mill, but obtained operating rights from another company under the leave and licence agreement for the purpose of acquiring the profit-making apparatus for a duration of three years or a little more; that the business of running a cotton mill was not its own, but was only operating the said mill under leave and licence agreement; that the amount of advance in a sum of Rs. twenty lakhs was given not for its own purpose by way of business expenditure for modernising the mill, but as capital to the lessor who in turn had to modernise the mill. In the resolutions made by the board of directors, it was clear that the transaction entered into was not in the nature of a loan transaction or a moneylending transaction and thus the loss suffered by the assessee was a capital loss and hence, the amount could not be deducted from the assessee's income as business loss.

9. In the result, the view taken by the High Court affirming the view of the Tribunal appears to us to be correct and we dismiss this appeal. In the facts and circumstances of the case, there shall be no order as to costs.

DISCLAIMER: Though all efforts have been made to reproduce the order accurately and correctly however the access, usage and circulation is subject to the condition that VATinfoline Multimedia is not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions.