Delhi H.C : What advantage did the assessee get by constructing a building which belonged to somebody else and spending money for such construction ?

High Court Of Delhi

Bigjo’s India Limited vs. CIT

Sections 37(1), 260A

Asst. Year 1988-89

Madan B. Lokur & V.B. Gupta, JJ.

IT Appeal No. 1292 of 2006

28th March, 2007

Counsel Appeared

Ajay Vohra with Ms. Kavita Jha, for the Appellant : R.D. Jolly, for the Respondent

JUDGMENT

V.B. GUPTA, J. :

Appellant has filed the present appeal under s. 260A of the IT Act, 1961 (hereinafter referred to as Act) against the order dt. 20th Jan., 2006 passed by the Income-tax Appellate Tribunal, Delhi Bench A (hereinafter referred to as Tribunal) in ITA No. 4223/Del/2001 for the asst. yr. 1998-99, whereby the Tribunal upheld the disallowance of Rs. 7 lacs made on account of repair and maintenance expenses by the CIT(A). The facts in brief are that the assessee is running its business at its retail Departmental store situated at New Delhi South Extension Part-II. The assessee claimed deduction of Rs. 15.15 lacs on account of repair and maintenance expenditure. In addition, the assessee claimed deduction amounting to Rs. 2.65 lacs for air-conditioner repair and maintenance. The AO noted from the details filed by the assessee that most of the expenses related to supply of building material including timber and plywood of Rs. 2,20,000. The assessee stated before the AO that during the year, various new counters were constructed and other building work had been undertaken. The AO held that this expenditure incurred by the assessee has resulted in enduring benefit for a long period and he assessed a sum of Rs. 10 lacs on estimate as representing capital expenditure incurred by the assessee. Being dissatisfied, the assessee filed an appeal before CIT(A) who agreed with the findings of the AO that the expenditure incurred has resulted in the long-term enduring benefit to the assessee. However, the CIT(A) held that the estimate of Rs. 10 lacs made by the AO was on higher side and he sustained the disallowance to the extent of Rs. 7 lacs. Still aggrieved, the assessee filed an appeal before the Tribunal. Vide impugned order, the Tribunal dismissed the appeal filed by the assessee.

It has been argued by the learned counsel for the assessee that the assessee is a mere licensee in the showroom and had not made any structural changes but had merely renovated the existing showroom for the purposes of facilitating the carrying on of its business and the expenditure incurred towards shifting of the lift or renovation of showroom is not capital in nature since this expenditure was necessitated by the changes in design to ensure maximum utilisation of existing floor area and the same was incurred during the ordinary course of business and this expenditure is in the nature of current repairs, allowable as revenue deduction. Learned counsel for the assessee in support of his contention cited a decision of apex Court in CIT vs. Madras Auto Services (P) Ltd. (1998) 148 CTR (SC) 398 : (1998) 233 ITR 468 (SC). On the other hand, it has been argued by the learned counsel for the Revenue that the assessee has incurred huge expenditure which resulted into long-term benefit to the assessee and such expenditure is not allowable as revenue expenditure and same cannot be passed on as a repair and maintenance expenditure. In the case of Madras Auto Services (P) Ltd. (supra), the assessee spent huge amount in order to construct a new building after demolishing the old building. The new building, however, from inception was to belong to the lessor and not to the assessee. The assessee, however, had the benefit of the existing lease in respect of the new building at the agreed rent for a period of 39 years. The Tribunal found, as a fact, that the rent as stipulated in the lease was extremely low. It said that the area of the building was somewhere about7,000 sq. ft. The rental rate for the area in which the building was situated was much higher and would be not less than Rs. 12,000 as against which the maximum rent the assessee would be paying was only Rs. 2,000. This concessional rent was on account of the fact that the new building was constructed by the assessee at its own cost. It was held by the apex Court that :

“In order to decide whether this expenditure is revenue expenditure or capital expenditure, one has to look at the expenditure from a commercial point of view. What advantage did the assessee get by constructing a building which belonged to somebody else and spending money for such construction ? The assessee got a long lease of a newly constructed building suitable to its own business at a very concessional rent. The expenditure, therefore, was made in order to secure a long lease of new and more suitable business premises at a lower rent. In other words, the assessee made substantial savings in monthly rent for a period of 39 years by expending these amounts.

The saving in expenditure was a saving in revenue expenditure in the form of rent. Whatever substitutes for revenue expenditure should normally be considered as revenue expenditure. Moreover, the assessee in the present case did not get any capital asset by spending the said amounts. The assessee, therefore, could not have claimed any depreciation. Looking to the nature of the advantage which the assessee obtained in a commercial sense, the expenditure appears to be revenue expenditure. The test for distinguishing between capital expenditure and revenue expenditure in our country was laid down by this Court in Assam Bengal Cement Co. Ltd. vs. CIT (1955) 27 ITR 34 (SC). In that case, the appellant company had acquired from the Government of Assam lease of certain limestone quarries for a period of 20 years for the purpose of manufacture of cement. The lessee had, inter alia, agreed to pay an annual sum during the whole period of the lease as a protection fee and in consideration of that payment, the lessor undertook not to grant to any person any lease, permit or prospecting licence for limestone. This Court examined tests laid down in various cases for distinguishing between capital expenditure and revenue expenditure. One of the standard tests now in use was laid down in the case of Atherton vs. British Insulated and Helsby Cables Ltd. (1925) 10 Tax Cases 155. It said (p. 40 of 27 ITR) : “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.” Whether by spending the money any advantage of an enduring nature has been obtained or not will depend upon the facts of each case. Moreover, as the above passage itself provides, this test would not apply if there are special circumstances pointing to the contrary. This Court in the above case summarised the tests as follows (p. 44) : “1. Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment. Expenditure may be treated as properly attributable to capital when it 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 … If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether. Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business, again it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital.”

9. Further held, that :

“Since the asset created by spending the said amounts did not belong to the assessee but the assessee got the business advantage of using modern premises at a low rent, thus saving considerable revenue expenditure for the next 39 years, both the Tribunal as well as the High Court have rightly come to the conclusion that the expenditure should be looked upon as revenue expenditure.”

10. Keeping in view the above principles laid down by the apex Court, it is to be seen as to whether the expenditure incurred by the assessee in this case is capital or revenue.

11. As per the license agreement placed on record by the assessee, the licensee (i.e., present assessee) shall not make any structural changes in the premises without the prior written consent of the licensor. Further, in this agreement, no rate of license fee has been mentioned, as to what amount, present assessee is paying to the owner nor it is the case of the assessee that by spending large amount of Rs. 7 lacs, the license fee of the premises has been reduced. As such the facts of the Madras Auto Services (P) Ltd. (supra) are clearly distinguishable from the facts of the present case.

12. It is an admitted fact that structural changes have been made by the assessee in the premises and this is a pure question of fact and there are concurrent findings to this effect by three statutory authorities. During the course of the assessment proceedings, the assessee himself has admitted that during the year new counters were erected and this fact has been established from the record since huge expenditure on purchase of timber and plywood have been incurred by the assessee. Further, the assessee has altogether built a new shaft and shifted old shaft to a new site and has spent huge amount on the construction of it. So, there is no doubt that these expenditure incurred by the assessee are for fixed capital assets and, therefore, the expenditure is in the nature of capital and we are unable to accept this contention of the assessee, that these expenditure are in the nature of current repairs or the same have been incurred in merely renovating the existing old assets.

13. Since considerable amount has been spent by the assessee for acquiring new assets such as lift shaft and wooden counters, etc., we have no hesitation in holding that the expenditure is capital in nature and we do not find any reasons to differ with the concurrent findings of facts given by the three statutory authorities. The above being the position, no fault can be found with the view taken by the Tribunal. Thus, the order of the Tribunal does not give rise to a question of law, much less a substantial question of law, to fall within the limited purview of s. 260A of the Act, which is confined to entertaining only such appeals against the order which involves a substantial question of law. Accordingly, the present appeal filed by the assessee is, hereby, dismissed.

[Citation : 293 ITR 170]

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