Karnataka Power Transmission Corporation Ltd., Bangalore V. DCIT, Bangalore

ITA 249/BANG/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63752 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNDERA RAJAN
• Assessee Lawyers: A C RAJU
• Keywords: Capital asset; Depreciation; Business expenditure; Revenue expenditure; Capital expenditure
• Section: 143(3)

Judgement Text

PAGE 1 OF 14 ITA NO.249/BANG/201 2 1 INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES C BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER SHRI JASON P BOAZ, ACCOUNANT MEMBER AND ITA NO.249/BANG/2012 (ASST. YEAR 2008-09) M/S KARNATAKA POWER TRANSMISSION CORPORATION LTD., 7 TH FLOOR, CAUVERY BHAVAN, K G ROAD, BANGALORE-9. - APPELLANT PA NO.AABCK7281M VS THE DEPUTY COMMISSIONER OF INCOME TAX, (LTU), BANGALORE. - RESPONDENT DATE OF HEARING : 15/10/2012 DATE OF PRONOUNCEMENT : 19/10/2012 APPELLANT BY : SHRI A C RAJU, C.A. RESPONDENT BY : SHRI SUNDERA RAJAN, JCIT O R D E R PER GEORGE GEORGE K : THIS APPEAL INSTITUTED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-LTU, BANGALORE DATED 14/11/2011 .. THE RELEVANT ASST. YEAR IS 2008-09. 2. THE ASSESSEE HAS RAISED THREE GROUNDS OF APPEAL . THE FIRST GROUND IS GENERAL IN NATURE AND REQUIRES NO ADJUDIC ATION AND HENCE, THE SAME IS DISMISSED. PAGE 2 OF 14 ITA NO.249/BANG/201 2 2 3. THE REMAINING GROUNDS, NAMELY, GROUND NOS. 2 AND 3 READS AS FOLLOWS:- 2) THE LEARNED CIT(A) ERRED IN HOLDING THAT RS.5,6 9,239/- AS CAPITAL EXPENDITURE. 3. THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THAT RS.5,69,239/- IS IN THE NATURE OF BUSINESS EXPENDIT URE AND ALLOWABLE AS REVENUE EXPENDITURE. 4. THE FACTS IN RELATION TO THE ABOVE GROUNDS ARE AS FOLLOWS:- THE ASSESSEE IS A COMPANY. IT IS A KARNATAKA STAT E GOVERNMENT UNDERTAKING. IT IS ENGAGED IN THE BUSINESS OF TRAN SMISSION OF ELECTRIC ENERGY. FOR THE CONCERNED ASSESSMENT YEAR, RETURN OF INCOME WAS FILED ON 30.09.2008 DISCLOSING A LOSS OF RS.72,82,25,102/-. THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 21/12/2010 UNDER SECTION 143(3) OF THE ACT. THE ASSESSEE HAD INCURRED AN EXPENDITURE OF RS.5,69 ,239/- TOWARDS IDENTIFICATION, SURVEY AND FEASIBILITY STUDIES OF PR OJECTS. FOR THE REASONS LIKE NON-VIABILITY, NON-FEASIBILITY AND DUE TO DEFECT S IN LOCATION ETC., THE PROJECTS WERE NOT PUT THROUGH. SUCH OF THESE EXPEN SES WERE WRITTEN OFF TO PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER WHI LE COMPLETING THE ASSESSMENT HAD TREATED THE EXPENDITURE AS CAPITAL I N NATURE AND DISALLOWED THE SAME. 5 THE ASSESSING OFFICER WAS OF THE VIEW THAT THE E XPENDITURE WAS INCURRED WITH AN INTENTION TO CREATE A CAPITAL ASSET; THEREFORE, THE EXPENDITURE WOULD BE CAPITAL IN NATURE INSPITE OF T HE PROJECT BEING DROPPED MIDWAY. THE ASSESSING OFFICER RELIED ON THE FOLLOWI NG JUDGEMENTS:- PAGE 3 OF 14 ITA NO.249/BANG/201 2 3 ASSAM BENGAL CEMENT CO. LTD. V CIT 27 ITR 34 (SC); CIT V BAZPUR COOPERATIVE SUGAR FACTORY LTD. 142 ITR 1 (ALL); FANCY CORPORATION LTD. V CIT 162 ITR 827 (BOM.); EAST INDIA COMMERCIAL CO. P. LTD. V CIT 54 ITR 81 ( CAL.); CIT V DIGVIJAY CEMENT CO. LTD. 159 ITR 253 (GUJ.); TRIVENI ENGINEERING WORKS LTD. V CIT 232 ITR 639 (D EL.); CIT V AMBICA MILLS LTD. 147 ITR 340 236 ITR 921 (GU J.). 5.1 THE ASSESSING OFFICER FINALLY CONCLUDED BY HOLD ING THUS :- CONSIDERING THESE FACTS, I HAVE TO HOLD THAT THE A MOUNT OF RS.5,69,239/- DEBITED IN THE BOOKS UNDER THE HEA D INFRUCTUOUS CAPITAL EXPENDITURE WRITTEN OFF, IS C APITAL IN NATURE. ACCORDINGLY, THIS AMOUNT IS DISALLOWED AND ADDED BACK TO THE INCOME DECLARED. 6. THE ASSESSEE, BEING AGGRIEVED, CARRIED THE MATT ER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LEARNED COUNSEL FOR THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS DATED 10/10/2011. IT WAS CONTENDED BY THE LEARNED AR THAT THE EXPENDITURE INCURRED WAS NOT ON ACCOUNT OF COMMENCEMENT OR CONSTRUCTION OF NEW PROJECT. IT WA S SUBMITTED THAT NO ASSET HAS BEEN BROUGHT INTO EXISTENCE AND NO ENDURI NG BENEFIT HAS BEEN OBTAINED. IT WAS ARGUED THAT THE ABOVE EXPENDITURE WAS INCURRED TO INCREASE THE PROFIT EARNING CAPACITY AND NOT TO ACQU IRE ANY CAPITAL ASSET. IT WAS FURTHER STATED THAT FOR THE ASSESSMENT YEARS 200 4-05 TO 2006-07, THE ASSESSEE HAD INCURRED IDENTICAL EXPENSES TO THE TUN E OF RS.7,11,450/-, RS.5,18,091/- & RS.11,93,859/- RESPECTIVELY AND IN S CRUTINY ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT, THE ABOV E SAID EXPENSES WERE NOT DISALLOWED AS BEING CAPITAL IN NATURE. IT WAS ARGUED THAT THE FACTS BEING SIMILAR FOR THE INSTANT CASE TO THAT OF THE ASSESSM ENT YEARS 2004-05 TO PAGE 4 OF 14 ITA NO.249/BANG/201 2 4 2006-07, THE DEVIATION ADOPTED BY THE ASSESSING OFFI CER IN TREATING THE ABOVE SAID EXPENSES AS CAPITAL IS NOT WARRANTED AND JUSTIFIED. 7. THE CIT(A) FOR HER DETAILED REASONING CONTAINED IN PAGES 7 TO 13 (PARA 6) OF THE IMPUGNED ORDER, DISMISSED THE AP PEAL OF THE ASSESSEE. 8. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US . IT WAS SUBMITTED THAT AN IDENTICAL ISSUE HAS BEEN CONSIDER ED BY THE BANGALORE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.1329/BANG/2010 FOR THE ASSESSMENT YEAR 2007-08 VIDE ORDER DATED 16/12/2 011. IT WAS STATED THAT THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE. 9. THE LEARNED DR PRESENT WAS DULY HEARD. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE TRIBUNAL IN ASSESSEES OWN CASE F OR THE ASSESSMENT YEAR 2007-08 (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THE FINDING OF THE TRIBUNAL IS REPRODUCED BELOW FOR READY REFERE NCE:- 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE NATURE OF EXPENDITURE TERMED AS INFRUCTUOUS CAPITAL EXPENDIT URE AS DETAILED IN THE WRITTEN SUBMISSIONS OF THE ASSES SEE, WHICH HAS NOT BEEN CONTROVERTED BY THE LEARNED DR, I S AS FOLLOWS:- THE ASSESSEE IS ENGAGED IN TRANSMISSION OF POWER TO THE ELECTRICITY SUPPLY COMPANIES. IN THIS PROCESS OF TRANSMISSION, THE ASSESSEE HAD TO TAKE UP THE CONSTRUCTION OF TRANSMISSION LINES AT THE PLACES NOT CATERED SO FAR. THIS IS AN ONGOING PROCESS. THE PROCESS WILL INVOLVE SURVEY, FEASIBILITY PAGE 5 OF 14 ITA NO.249/BANG/201 2 5 STUDIES, INVITING TENDERS FROM THE CONTRACTORS TO TAKE UP THE CONSTRUCTION WORK, ENGAGING CONSULTANTS TO ADVISE ON MATTERS RELATING TO SETTING UP OF SUBSTATION, WHICH INVOLVES COST TO THE KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL). DURING THE PROCESS OF SETTING UP OF LINES/NET WORK SOME OF THE PROJECTS WILL BECOME UNSUITABLE DUE TO FAULTS EXISTING IN SOIL CONDITIONS, NON-AVAILABILITY OF FOREST CLEARANCE ETC. THE PROJECTS IN THOSE CASES ARE DROPPED OR ABANDONED. IF THE PROJECT FRUCTIFIES, THE WHOLE OF THE EXPENDITURE WILL BE IDENTIFIED AS CAPITAL EXPENDITURE AND WILL BE CAPITALIZED AS THE COST OF THE PROJECT. AS SOME OF THE PROJECTS HAVE TO BE GIVEN UP FOR VARIOUS REASONS, THE EXPENDITURE IS RECOGNIZED AS BUSINESS EXPENDITURE AND TERMED AS INFRUCTUOUS. THE TERM USED IN ACCOUNTS INFRUCTUOUS CAPITAL EXPENDITURE WRITTEN OFF IS SUGGESTED BY ACCOUNTS MANUAL VOL. III ISSUED UNDER ELECTRICITY SUPPLY ANNUAL ACCOUNTS RULES, 1985. THOUGH IT IS TERMED AS CAPITAL EXPENDITURE IN A REAL SENSE, IT IS NOT AT ALL A CAPITAL EXPENDITURE. THE KPTCL HAS TO NECESSARILY INCUR THESE TYPES OF EXPENDITURES BEFORE SETTING UP OF STATIONS, TRANSMISSION LINES WHICH IS THE MAJOR OBJECT OF THE COMPANY. THE EXPENDITURE INCURRED IS A NORMAL BUSINESS EXPENDITURE WHICH ANY BUSINESS MAN OBLIGED TO INCUR IN PURSUING THEIR BUSINESS OBJECTS. CALLING IT AS A CAPITAL EXPENDITURE IS A MISNOMER. IN THIS CASE, THE KPTCL HAS NOT STARTED A NEW UNIT OR NEW PROJECT. THE EXPENDITURE IS INCURRED IN FURTHERANCE OF THE BUSINESS AND TO IMPROVE THE PROFIT EARNING CAPACITY. PAGE 6 OF 14 ITA NO.249/BANG/201 2 6 10.1 THE DETAILS OF BREAK-UP OF THE INFRUCTUOUS CAPITAL EXPENDITURE CLAIMED ARE AS FOLLOWS:- MAJOR WORKS DIVISIONS TUMKUR :- SL. NO. NATURE OF EXPENDITURE AMOUNT (RS.) 1. 110 KV D/C LINE FROM 220 KV STATION AT ANTHRASANAHAL LY TO SIRA 1,24,482 2. SURVEY CHARGES PROPOSED 220 KV D/C LINE FROM ANCHE PALYA-MANDYA TO TUBINAKERE (LINE) AT FROM SEE/MW @ BANGALORE AT NO.255 /12/1/2004 T.O JV NO.29/31.1.2004. 7,34,085 3. SURVEY CHARGES PROPOSED 66 KV (LL) FROM 66 KV HU LIYURDURGA- DUNDANAHALLY S/C LINE TO PROPOSED 66 KV SS NIDSALE JV NO.29/31.1.2004 BR NO.253/112.9.03 9,843 4. SURVEY CHARGES FOR CONSTRUCTION OF 66/11 KV LINE F ROM H-DURGA TO DUNDANAHALLY JV NO.43/29.3.04 29,591 5. AMOUNT PAID TO GEO-TECH INVESTIGATION CHARGES BR NO.1332/5.1.05 TO JV NO.40/30.7.05 NIDASALE S/S 81,380 6. PREPARATION OF AGENDA NOTE TAC FOR NEW SUB-STATION A ND TD LINE AT HONNAMACHANAHALLY KUNIGEL TQ. SRI S JAGADISH, BR NO.1153 /13.2.06 27,550 7. PREPARATION OF AGENDA NOTE TAC FOR NEW SUB-STATION AND TR. LINE AT JIDDIGERE KUNIGEL TQ. SRI S JAGADISH BR. NO.1155/13 .2.06 27,550 8. PREPARATION OF AGENDA NOTE TAC FOR NEW SUB-STATION AND TR. LINE AT SAJJEHOSALLY, M-GIRI TQ BR NO.1154/13.2.06 27,550 9. PREPARATION OF AGENDA NOTE TAC FOR NEW STATION AND TR. LINE AT EST.66/11KV S/S AT GUNGURUMALE. 579 TOTAL 10,62,610 (II) MAJOR WORKS DIVISION, MYSORE : SL. NO. NATURE OF THE WORK AMOUNT (RS.) 1. EXTENSION OF 19 KMS OF DC 66 KV FROM KADAKOLA TO LINK M1 M2 LINES AT ALANHALLI, MYSORE. 17,02,529 2. 66/11 KV S/S IN SHIVALLY 67,960 3. 66 KV D/C LINE FROM 220 KV/66 KV S/S AT KADAKOLA TO LINK WITH 66 KV FTS-SFC M2 LINE NEAR ALANAHALLY 73,974 TO TAL 18,44,463 (III) MAJOR WORKS DIVISION, BELGAUM : SL. NO. NATURE OF EXPENDITURE AMOUNT (RS.) 1. 220 KV GHATAPRABHA TO KUDACHI LINE 60,361 2. 220 KV NASRENDRA TO CHIKODI LINE 1,70,630 3. 220 KV GHATAPRABHAS LINE 23,065 TOTAL 2,54,056 PAGE 7 OF 14 ITA NO.249/BANG/201 2 7 (IV) CHIEF ENGINEER ELECTRICITY, TENDERING & PROCUREMENT SL. NO. NATURE OF EXPENDITURE AMOU NT (RS.) 1. CONSULTATION FEES 5,51,000 TOTAL 5,51,000 10.2 IN THE COURSE OF RUNNING A BUSINESS, THERE ARISE SITUATIONS WHERE EXPENDITURE HAS TO BE INCURR ED FOR THE PURPOSE OF THE BUSINESS BUT THE OBJECTIVES ARE NOT FULFILLED. FOR EXAMPLE, EXPENDITURE MAY BE INC URRED IN PREPARING A PROJECT REPORT FOR A NEW INDUSTRIAL UNDERTAKING AND SUBSEQUENTLY IT IS DECIDED TO DROP T HE PROJECT. IT COULD ALSO HAPPEN THAT EXPENDITUR E MAY BE INCURRED ON FOREIGN TRAVEL FOR NEGOTIATING THE PURC HASE OF RAW MATERIALS OR PLANT AND MACHINERY. SUBSEQUENT LY, IT MAY BE DECIDED NOT TO IMPORT THE GOODS. IN ALL THES E CASES, THE EXPENDITURE WOULD PROVE TO BE INFRUCTUOU S AND THE QUESTION OF ITS DEDUCTIBILITY WOULD THEREFORE AR ISE. 10.3 WHEN SUCH EXPENDITURE IS NOT DEDUCTIBLE AT ALL ON THE GROUND THAT IT IS OF A CAPITAL NATURE, T HE DEPRECIATION AND INVESTMENT ALLOWANCES ARE ALSO DEN IED AT THE SAME TIME, SINCE THEY ARE AVAILABLE ONLY IN RESPE CT OF A CAPITAL ASSET. THEREFORE, THE EXPENSES ARE TREAT ED AS A DEAD LOSS AND WOULD HAVE TO BE BORNE ONLY FROM THE AFTER TAX INCOME. THERE IS A FALLACY BEHIND THE DEPARTMENTS DENIAL OF THE DEDUCTION BY TREATING SUC H INFRUCTUOUS EXPENDITURE AS BEING ON CAPITAL ACCOUNT . IN FACT, THE WORD CAPITAL IS INDISCRIMINATELY USED WI TH THE SOLE OBJECT OF DENYING THE BENEFIT OF DEDUCTION TO A N ASSESSEE. 10.4 CAPITAL EXPENDITURE IS INCURRED IN LAW AND ON ACCOUNTANCY PRINCIPLES ONLY IN THE FOLLOWING CIRCUMSTANCES:- A NEW ASSET IS BROUGHT INTO EXISTENCE; AN ADVANTAGE OR ENDURING BENEFIT IS OBTAINED BY THE ASSESSEE; PAGE 8 OF 14 ITA NO.249/BANG/201 2 8 THE EXPENDITURE RELATES TO THE FIXED CAPITAL AS DIS TINCT FROM THE CIRCULATING CAPITAL; THE EXPENDITURE IS OF AN INITIAL NATURE TO COMMENCE A BUSINESS FOR THE FIRST TIME; THE EXPENDITURE INCURRED IS TO ACQUIRE A CONCERN OR GOODWILL. THUS, IF NONE OF THE AFORESAID CIRCUMSTANCES HAVE MATERIALIZED, AN EXPENDITURE CANNOT BE TREATED AS B EING ON CAPITAL ACCOUNT MERELY TO PROVIDE AN ALIBI FOR IT S BEING DISALLOWED. THE ONLY CIRCUMSTANCES IN WHICH IT CAN BE DISALLOWED ARE WHERE THE EXPENDITURE IS OF A PERSON AL NATURE OR THE EXPENDITURE IS NOT RELATED TO THE BUS INESS OF THE ASSESSEE. IN RESPECT OF THE FIRST CIRCUMSTA NCE, IT IS NECESSARY THAT ANY EXPENDITURE INCURRED MUST RESUL T IN THE ACQUISITION OF CAPITAL ASSETS AND WOULD INCLUDE ALL EXPENDITURE INCIDENTALS TO THE ACQUISITION, INSTALL ATION AND ERECTION OF THE CAPITAL ASSET. MOREOVER, THIS GENE RAL PRINCIPLE THAT EXPENDITURE ON THE CREATION OF A CAP ITAL ASSET IS ON CAPITAL ACCOUNT APPLIES ONLY WHERE THE C APITAL ASSET BELONGS TO THE ASSESSEE. 10.5 VIEWED FROM THE ABOVE REASONING, LET US EXAMINE THE JUDICIAL PRECEDENT, WHICH HAS BEEN CITE D BY BOTH THE SIDES. 10.5.1 THE HOUSE OF LORDS POINTED OUT IN I. R. V CARRON CO. (45 T.C.18) THAT THE MOST RELEVANT POINT IS THE NATURE OF THE ADVANTAGE IN A COMMERCIAL SENSE. IT IS ONLY WHERE THE ADVANTAGE IS IN THE CAPITAL FIELD THAT TH E EXPENDITURE WOULD BE DISALLOWED BY THE APPLICATION O F THE TEST. IF THE ADVANTAGE CONSISTS MERELY IN FACILITAT ING THE ASSESSEES TRADING OPERATIONS OR ENABLING THE MANAG EMENT AND CONDUCT OF THE ASSESSEES BUSINESS TO BE CARRIE D ON MORE EFFICIENTLY OR MORE PROFITABLY, WHILE LEAVING TH E FIXED CAPITAL UNTOUCHED, THE EXPENDITURE WOULD BE O N REVENUE ACCOUNT EVEN THOUGH THE ADVANTAGE MAY ENDURE FOR THE INDEFINITE FUTURE. THIS IS A VERY IMPORTANT PROPOSITION OF LAW BECAUSE MOST OF THE TRANSACTIONS ENTERED INTO BY A TRADER ARE MEANT TO FACILITATE HIS PAGE 9 OF 14 ITA NO.249/BANG/201 2 9 TRADING OPERATIONS AND ENABLE THE MANAGEMENT AND CONDUCT OF THE ASSESSEES BUSINESS TO BE CARRIED ON MORE EFFICIENTLY OR PROFITABLY. FOR EXAMPLE, WHERE AN ASSESSEE ENTERS INTO A FOREIGN COLLABORATION AGREEM ENT WHICH IS TO ACQUIRE THE LATEST TECHNIQUES OF MANUFACTURING A PRODUCT OR PERHAPS A DIFFERENT TYPE OF PRODUCT IN THE SAME LINE OF BUSINESS, JUDICIAL DECI SIONS HAVE CONSIDERED THE EXPENDITURE TO BE ON REVENUE ACCOUNT EVEN WHERE THE PERIOD OF THE AGREEMENT IS F OR A FAIRLY LONG SPAN OF 15 YEARS. 10.5.2 IN CIT V KARNATAKA STATE INDUSTRIAL & INVESTMENT DEVELOPMENT CORPORATION (163 ITR 657), T HE ASSESSEE, WHICH WAS ENGAGED IN THE BUSINESS OF PROM OTING AND OPERATING SCHEMES FOR THE INDUSTRIAL DEVELOPMEN T OF KARNATAKA, INCURRED EXPENDITURE IN GETTING PROJECT REPORTS AND FEASIBILITY STUDIES PREPARED BY QUALIFIED PERSONS. THE INCOME-TAX DEPARTMENT CONTENDED THAT THE EXPENDITURE INCURRED WAS NOT REVENUE EXPENDITUR E BUT WAS CAPITAL EXPENDITURE. THE KARNATAKA HIGH CO URT DISAGREED AND HELD IT TO BE REVENUE EXPENDITURE. 10.5.3 IN ACC VICKERS BABCOCK LTD. V CIT (103 ITR 321), THE COMPANY WAS CARRYING ON BUSINESS AS MANUFACTURERS AND DEALERS IN CEMENT-MAKING MACHINER Y AND EQUIPMENTS OF A SIMILAR NATURE. WITHIN 2 YEARS OF ITS INCORPORATION IT ENTERED INTO AN AGREEMENT WITH AN AMERICAN COMPANY WITH A VIEW TO SECURE A LINCECE AND ALL THE NECESSARY KNOW-HOW, DESIGNS, DRAWINGS, ETC. TO MANUFACTURE DIFFERENT TYPES OF MACHINES IN WHICH TH E FOREIGN COLLABORATOR SPECIALIZED. THE EQUIPMENT COVERED BY THE AGREEMENT WAS TO BEAR THE NATURE OF T HE FOREIGN COLLABORATOR. THE AGREEMENT WAS FOR A PERI OD OF 10 YEARS DURING WHICH THE ASSESSEE WAS REQUIRED TO K EEP CONFIDENTIAL ALL INFORMATION, DESIGNS AND ENGINEERI NG DATA SUPPLIED BY THE MANUFACTURER. THE BOMBAY HIGH COURT HELD THAT THE FEES PAID TO THE FOREIGN COLLABORATOR WERE SO RELATED TO THE CARRYING ON OF THE BUSINESS THAT T HEY PAGE 10 OF 14 ITA NO.249/BANG/20 12 10 WOULD HAVE TO BE REGARDED AS AN INTEGRAL PART OF TH E PROFIT MAKING PROCESS AND THERE WAS NO INDICATION T HAT THE PAYMENTS TO BE MADE WERE FOR THE PURPOSE OF ACQUISITION OF AN ASSET OR A RIGHT OF A PERMANENT CHARACTER. 10.5.4 NOW TAKING THE ILLUSTRATION OF ACQUISITION OF MACHINERY, THERE CAN BE NO DOUBT THAT IF AS A RESULT OF INCURRING THE EXPENDITURE, THE MACHINERY HAD ACTUALL Y BEEN ACQUIRED, ALL EXPENDITURE WOULD BE INCLUDED IN THE ACTUAL COST OF THE ASSET. HENCE, NOT ONLY THE PRICE OF THE MACHINERY BUT ALL INCIDENTAL EXPENSES INCURRED TO AC QUIRE IT LIKE TRAVELLING EXPENSES, FREIGHT, INSURANCE AND HANDLING CHARGES FOR BRINGING IT TO THE LOCATION, EXPENSES O N INSTALLATION, ERECTION AND COMMISSIONING ETC. WOULD ALL BE INCLUDED IN THE ACTUAL COST OF THE ASSET. HOWEVER , WHERE THE BUSINESS MAN DECIDES NOT TO ACQUIRE THE ASSET, THOUGH SOME EXPENDITURE WAS INCURRED INITIALLY, WE A RE OF THE VIEW THAT IT CANNOT BE SAID THAT SUCH INITIAL EXPENDITURE WHICH HAS NOW PROVED TO BE INFRUCTUOUS, HAS RESULTED IN THE CREATION OF AN ASSET OR BROUGHT AN ENDURING BENEFIT TO THE TAX PAYER. THUS IN THE ABSE NCE OF SUCH ACQUISITION OF ASSET OR ENDURING ADVANTAGE, IT IS DIFFICULT TO UNDERSTAND THE RATIONALE FOR TREATING THE INFRUCTUOUS EXPENDITURE AS BEING ON CAPITAL ACCOUNT . HENCE, UNLESS A TANGIBLE ASSET HAS BEEN CREATED OR ACQUIRED THE EXPENDITURE CANNOT BE SAID TO BE ON CA PITAL ACCOUNT. TO PUT IT DIFFERENTLY, THE ACQUISITION OF THE ASSET IS THE CRUCIAL FACTOR FOR CONVERTING AN EXPEN DITURE INTO ONE ON CAPITAL ACCOUNT. ON THE OTHER HAND, IF THE EXPENDITURE IS NOT REPRESENTED BY A CAPITAL ASSET, I T CANNOT BE SAID THAT SUCH EXPENDITURE IS OF A CAPITA L NATURE UNLESS OTHER CIRCUMSTANCES LIKE THE ACQUISIT ION OF AN ENDURING BENEFIT HAVE BEEN FULFILLED. 11. THE ASSESSING OFFICER HAS RELIED ON CERTAIN CASE LAWS. THE CASE LAWS CITED AT PARA NO.4.1 OF T HE PAGE 11 OF 14 ITA NO.249/BANG/20 12 11 ASSESSMENT ORDER ARE NOT SIMILAR TO THE CASE ON HAN D AND IS DISTINGUISHABLE. WE HEREIN BELOW DISCUSS THOSE ISSUES : 11.1 ASSAM BENGAL CEMENT CO. LTD. V CIT 27 ITR 34 (SC) MANUFACTURE OF CEMENT LEASE OF LIMESTONE QUARRIES FOR 20 YRS HALF YEAR RENT AND ROYALTIES PAYABLE IN ADD ITION AGREED TO PAY RS.5,000/- AND RS.35,000/- ANNUALLY TOWARDS PROTECTION FEES, THE COURT HELD THE ADVANT AGE OBTAINED WAS OF ENDURING NATURE THOUGH THE RECURRIN G PAYMENT WAS IMMATERIAL. THE ASSET ACQUIRED WAS RIGH T TO CARRY ON BUSINESS UNFETTERED BY COMPETITION. THIS H AS NO BEARING WITH THE PRESENT CASE ON HAND. THE KPTCL HAS NOT ACQUIRED ANY ASSET OF ENDURING NATURE OR PERMANE NT NATURE. 11.2 CIT V BAZPUR COOPERATIVE SUGAR FACTORY LTD. 142 ITR 1 INCURRED EXPENDITURE FOR BORING NE W TUBEWELL. 11.3 FANCY CORPORATION LTD. V CIT 162 ITR 827 INSTALL A BORE WELL AT ITS NEW FACTORY SITE. 11.4 EAST INDIA COMMERCIAL CO. P. LTD. V CIT 54 ITR 81 THE COMPANY HAS SPENT RS.4680 TOWARDS STAMP DUTY IN RESPECT OF LEASE DEED FOR THE PURPOSE OF RENEWING THE LEASE WHICH HAS BECOME INVALID AND IN- EFFECTIVE. 11.5 IN ALL THE ABOVE CASES, THE COURTS HAVE HELD THAT THE EXPENDITURE IS INCURRED WITH A VIEW TO OBT AIN CAPITAL ASSET; HENCE, IT IS A CAPITAL EXPENDITURE. THIS IS NOT COMPARABLE TO OUR CASE ON HAND. THE KPTCL HAS, IN ESSENCE, INCURRED EXPENDITURE TO INCREASE THE PROFI T EARNING CAPACITY AND NOT TO ACQUIRE ANY CAPITAL ASSET . PAGE 12 OF 14 ITA NO.249/BANG/20 12 12 11.6 CIT V DIGVIJAY CEMENT CO. LTD. 159 ITR 253 EXPENDITURE IN OBTAINING A FEASIBILITY REPORT FOR SE TTING UP A SHIPYARD. THE REPORT WAS NOT FAVOURABLE AND NO SHIPYARD WAS ESTABLISHED. THE TRIBUNAL HELD IT AS A CAPITAL EXPENDITURE. ON A REFERENCE, THE GUJARAT H IGH COURT HAS OPINED THE ASSESSEE COULD NOT SUCCESSFULL Y CONTEND THAT THE SHIP BUILDING YARD WAS TO FACILITA TE ITS TRADING OPERATION OR WAS TO ENABLE IT TO MANAGE ITS BUSINESS MORE EFFICIENTLY. THE COURT HELD THAT OBTA INING FEASIBILITY REPORT FOR SETTING UP A SHIPYARD HAVING BEEN INCURRED WITH A VIEW TO BRINGING INTO EXISTENCE AN ADVANTAGE OR ASSET OF AN ALMOST PERMANENT NATURE OR OF AN ENDURING BENEFIT IS CAPITAL EXPENDITURE EVEN THO UGH NO SHIPYARD WAS ACTUALLY CONSTRUCTED. THE ABOVE CASE HAS NO RELEVANCE IN THE CONTEXT OF T HIS CASE, SINCE EXPENDITURE HAS BEEN INCURRED DURING TH E COURSE OF THE BUSINESS. 11.7 TRIVENI ENGINEERS WORKS LTD. V CIT 232 ITR 6 39 AMOUNT SPENT FOR PREPARING PROJECT REPORT AND SURVE Y REPORT IN CONNECTION WITH MANUFACTURE OF NEW PRODUC T THE COURT HAS HELD THAT EXPENDITURE IS INCURRED WIT H A VIEW TO BRINGING UP AN ASSET OR ADVANTAGE INTO EXIS TENCE AND FOR ENDURING BENEFITS IS CAPITAL EXPENDITURE. ITS NATURE DID NOT CHANGE TO REVENUE MERELY BECAUSE THE PROJECT DID NOT MATERIALIZE. HERE IN THIS CASE THE COMPANY INTENDED TO MANUFACTU RE A NEW PRODUCT ALL TOGETHER BY SETTING UP A NEW ESTABLISHMENT. HENCE, THIS CASE IS ALSO NOT COMPAR ABLE WITH THE CASE ON HAND. 11.8 AT PARA 4.3, THE ASSESSING OFFICER HAS CITED THAT IN CIT V BRITISH INDIA CORPN. LTD. (165 ITR 51 ) (SC) AND CIT V KARUNA MICA CO. (167 ITR 292) THAT IT WAS HELD PAGE 13 OF 14 ITA NO.249/BANG/20 12 13 THAT THE AIM AND OBJECT OF THE EXPENDITURE WOULD DETERMINE THE CHARACTER OF THE EXPENDITURE. IN BRI TISH INDIA, IT HAS BEEN HELD THAT RS.50,000/- FIXED AMOU NT PAID TO DISTRIBUTOR FOR ESTABLISHING DISTRIBUTORSHI P IS REVENUE IN NATURE. IN KARUNA MICA, IT HAS BEEN HEL D THAT THERE WAS A NEW CONSTRUCTION AND THE ULTIMATE OBJEC T WAS THE PROTECTION OF MINES AS ALSO THE SAFETY OF THE LABOURERS WAS CAPITAL EXPENDITURE. HENCE THIS CASE IS ALSO NOT COMPARABLE WITH THE CAS E ON HAND. 12. TO SUM UP, THE ABOVE MENTIONED EXPENDITURE HAS TO BE ALLOWED ON THE FACTS OF THIS CASE, SINCE NO NEW ASSET HAS BEEN BROUGHT INTO EXISTENCE AND NO ENDURI NG BENEFIT HAS BEEN OBTAINED TO THE ASSESSEE. MOREOVE R, THE EXPENDITURE INCURRED WAS NOT ON ACCOUNT OF COMMENCEMENT OR CONSTRUCTION OF NEW PROJECT. BEFOR E WE PART, IT IS TO BE MENTIONED THAT FOR THE ASSESSM ENT YEARS 2004-05 TO 2006-07, SIMILAR EXPENDITURE HAS BE EN CLAIMED BY THE ASSESSEE AND ALLOWED IN A SCRUTINY ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE AC T. WHEN FACTS ARE SIMILAR, A DEVIATION TAKEN FOR THIS ASSESSMENT YEAR BY TREATING THE ABOVE SAID EXPENDITUR E AS CAPITAL IN NATURE IS NOT WARRANTED. HENCE, GRO UND NOS. 2 AND 3 ARE ALLOWED. THE FACTS OF THE INSTANT CASE BEING IDENTICAL TO TH E FACTS CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08, WE FOLLOW THE TRIBUNALS ORDER IN ITA NO. NO.1329/BANG/2010 D ATED 16/12/2011 AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. THERE FORE, WE HOLD THAT THE EXPENDITURE OF RS.5,69,239/- INCURRED BY THE ASSESSE E IS ALLOWABLE AS REVENUE EXPENDITURE. HENCE, GROUND NOS. 2 AND 3 AR E ALLOWED. PAGE 14 OF 14 ITA NO.249/BANG/20 12 14 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DAY OF OCTOBER, 2012. SD/- SD/- (JASON P BOAZ) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COPY TO:- 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONC ERNED 4. THE CIT(A) CONCERNED 5. THE DR 6. GF MSP/- BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE.