2010 (11) TMI 100 - HC - Income Tax

Court rules on apportionment of capital expenditure in study, modifies Tribunal decision, deems 40% as capital.

COMMISSIONER OF INCOME TAX Versus OCL INDIA LIMITED

The court held that 40% of the total expenditure should be treated as capital expenditure, as two out of five areas of the study related to capital ... Revenue expenditure or the Capital expenditure - The Assessing Officer held the view that the entire expenditure is to be the capital expenditure - In the case of CIT Vs. J.K. Synthetics Ltd., (2008 -TMI - 31861 - DELHI HIGH COURT)- BROAD PRINCIPLES WHICH EMERGE ON READING OF VARIOUS AUTHORITIES have been given in relation to constitute what is revenue and what is capital expenditre.Based on the fact of the case and order deliver by various courts has allocated 40% of the total expenditure would be capital expenditure and remaining 60% amount spent is revenue in nature - The order of the Tribunal is modified accordingly Issues Involved:1. Whether the payment made by the assessee to M/s Feedback Strategic Consultancy Services Pvt. Ltd. is to be treated as capital expenditure or revenue expenditure.2. If the expenditure is to be apportioned, what percentage should be treated as capital expenditure and what percentage as revenue expenditure.Issue-Wise Detailed Analysis:1. Nature of Expenditure: Capital or RevenueThe primary issue is whether the payment of Rs. 47.25 lacs made by the assessee to M/s Feedback Strategic Consultancy Services Pvt. Ltd. (the Consultant) for a detailed study on the cement market in India should be treated as revenue expenditure or capital expenditure. The Assessing Officer (AO) initially treated the entire expenditure as capital expenditure, disallowing the payment. The CIT (A) confirmed this view. However, the Tribunal held that only 20% of the expenditure would be capital expenditure, with the remaining 80% being revenue expenditure.The assessee argued that the expenditure was incurred out of commercial expediency to cope with increasing competition in the cement market, and thus, it was necessary for protecting the market share. The expenditure did not result in the acquisition of an asset nor did it provide a benefit of enduring nature. The existing production capacity was not increased, and no new product was manufactured.The AO, however, believed that the detailed market study led to changes in marketing strategy and increased production of certain cement varieties, resulting in benefits of enduring nature. Thus, it was treated as capital expenditure. The CIT (A) added that the projection of future trends indicated a benefit of enduring nature, supporting the AO's view.2. Apportionment of Expenditure:The Tribunal, after considering the rival contentions, concluded that the report covered both trading activities and possible acquisitions/expansions. Expenses related to trading activities were treated as revenue expenditure, while those related to new projects or capacity expansion were treated as capital expenditure. The Tribunal apportioned 20% of the total expenses as capital expenditure and the remaining 80% as revenue expenditure.The Tribunal's decision was based on the scope of the study, which included five major areas: existing cement capacities, demand projections, industry consolidation, possible mergers and acquisitions, and expansion of existing plants. The Tribunal found that only two of these areas related to capital expenditure (new projects and capacity expansion).3. Principles for Determining Nature of Expenditure:The judgment referenced the case of CIT Vs. J.K. Synthetics Ltd., which outlined principles for determining whether an expenditure is capital or revenue in nature. Key principles include:- Expenditure for initial outlay of business is capital; ongoing business expenditure for acquiring an enduring benefit is capital, while expenditure for running the business is revenue.- The aim and object of the expenditure determine its character.- The test of 'once and for all' payment is inconclusive; the nature of the asset acquired is more relevant.- Expenditure for acquiring a source of profit is capital; expenditure for efficient operation of profit-making structure is revenue.- Expenditure for access to technical knowledge is revenue; absolute transfer of technical knowledge is capital.- The enduring advantage test is not decisive; the business perspective is crucial in determining the nature of expenditure.4. Final Judgment:The court agreed with the Tribunal's approach to apportion the expenditure but found the allocation of 20% towards capital expenditure to be insufficient. Given that two out of five areas of the study related to capital expenditure, the court held that 40% of the total expenditure should be treated as capital expenditure. The Tribunal's order was modified accordingly, sustaining the addition of 40% of the total payment as capital expenditure.