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2025 (4) TMI 1092
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....Northern Coal Fields JUDGMENT Per : Hon'ble Shri Justice Vivek Jain The present batch of appeals is under Section 260(A) of Income Tax Act 1961. The appeals have been filed on different grounds and different substantial questions law arise in these matters. However, there are certain substantial questions of law which arise commonly in many of the appeals and some other substantial questions of law arise in different appeals on different issues. 2. MAIT No. 79/2004 has been admitted on 13.04.2005 and substantial questions of law have been framed on that date which were thereafter reframed on 18.01.2016. By the same common order substantial questions of law were framed in ITA No. 71/2014. The operative part of the order dated 18.01.2016 is as under :- MAIT No.79/2004: This appeal is already admitted. Must proceed for final hearing under appropriate category as per its turn. MAIT No.80/2004: Counsel for the appellant submits that this appeal be heard along with MAIT No.79/2004. Ordered accordingly. ITA No.71/2014: As the question posed in this appeal, for which the appeal deserves to be admitted, is overla....
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....on of law has been framed on 14.01.2015: "1. Whether on the facts and in the circumstances of the case, the ITAT was justified in law in confirming the order of C.I.T(A) holding that the assessee is entitled to additional depreciation in respect of machineries used in mining activities at Nigahi Project, ignoring that the assessee is engaged in extraction of coal, not amounting to manufacturing as stipulated in the Act for allowance of additional depreciation?" 4. In ITA No. 32/2017 the following substantial questions of law have been framed on 31.10.2017 :- "a. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in law in deleting the addition of Rs.2466.34/- Cr. On account of disallowance of Overburden Removal Expenses with placed reliance on the observation of the Hon'ble Supreme Court in the case of Radhasoami Satsang Vs. CIT[1992] 193 ITR 321 (SC) in support of its view that there is not good reason to disturb the well settled factual aspect which permeates from year and year without appreciating the fact that resjudicata does not apply to income tax proceedings? b. Whether on the facts and in the circumst....
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....ransit camp expenses without even considering the judgment in the case of CIT Vs. Panna Knitting Industries reported in 253 ITR 656". Shri Shrivastava, Advocate takes notice for the Respondent." 6. So far as remaining appeals i.e. ITA Nos.70/2015, 74/2015, 75/2015, 76/2015, 77/2015, 78/2015 and 79/2015 are concerned, substantial questions of law have not been framed specifically in the aforesaid appeals. However, these appeals involve the questions of law which are already involved in the connected appeals wherein questions of law have been framed. 7. A preliminary objection has been raised by the learned counsel for the assessee at the outset that in many of the appeals substantial questions of law have not been framed and therefore, this Court should not entertain the said appeals in absence of framing of substantial questions of law and it has to be inferred that once substantial questions of law have not been framed, therefore the appeals do not involve any substantial question of law and therefore, these appeals should be dismissed at the threshold. 8. By order dated 22.2.2016 passed in these cases, it was ordered by this Court that questions of law have been....
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....ed in the other matters in which substantial questions of law have already been framed. In view of this position, reliance on the judgement of the Hon'ble Supreme Court in the case of Bikram Singh Vs. Principal Commissioner of Income Tax, reported in 2023 SCC Online SC 1320, is utterly misplaced. In the said case, substantial questions of law were framed and at the time of preparation of judgement, the High Court had framed such questions. Therefore, it was the case of the assessee before the Supreme Court that there was no notice to him with regard to the question of law raised in the appeal. In these circumstances, it was held that the substantial questions of law have not been framed and the matter was remitted to the High Court. 10. However, in these cases, this Court at interlocutory stage time and again has noted that substantial questions of law have been framed and the appeals be set out of for hearing and these orders were passed in presence of learned counsel for the assessee. Therefore, at this stage, the assessee cannot take benefit or leverage of the mere fact that separately substantial questions of law have not been framed in each of the appeals when none of the a....
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....cases are on slightly different footings from each other but since the assessee is common and the issues of law involved in each of the assessment years revolve on identical facts and the difference only being there in the matter of assessment year, therefore, these appeals are being decided by this common order. 13. From a perusal of the substantial questions of law framed in the five appeals where the same are specifically framed, questions arise in the matter of claiming deductions on account of machinery upgradation, social development, community development expenses incurred, education expenses, transit camp, overburden removal, etc. 14. As per Section 10(2)(xv) of the Income Tax Act 1922, the assessee was entitled to certain deductions from its assessed income which are in the nature of revenue expenses and the questions that arise in these matters are as to permissibility of deductions claimed under Section 37 of the Income Tax Act 1961, that corresponds to Section 10 (2)(xv) of Income Tax Act 1961 ( for short hereinafter referred to as "Act of 1961"). 15. The questions that arise for consideration of deductions claimable under Section 35-E or under Section 37 of Ac....
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.... capital in nature or amounted to charity / donation etc. 17. The case of the assessee was that there were three schools namely Kendriya Vidyalaya, Delhi Public School and DAV Public School operational during the relevant period and are run by societies operating pan-India, and as the mining operations were being carried out in remote areas, the children of mine workers did not have access to proper education facilities and the assessee was therefore, obliged to make arrangements with various educational institutions in the interest of its own business. Since it was not in a position to maintain and run its own institutions, therefore, it had made arrangements with the said authorities running the aforesaid three institutions who set up the institutions / schools with arrangements that part of expenditure was to be incurred by the assessee in return of which the children of employees of assessee got the educational facilities and such arrangement was in furtherance of agreements entered into by the assessee with the Unions. 18. The Tribunal noted that the assessee had been incurring expenditure on running of the institutions by three bodies which are running pan India schools....
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....are activities and it was indented to nullify the resentment against working of coal mines in the area and was, therefore, allowable as business expenditure, because ultimate aim was to maintain peace or harmony so as to permit the coal mines to work without resistance of the local people. 22. The Commissioner disallowed the expenditure on the ground that the expenses incurred to eliminate resentment into maintain peace and harmony are not acceptable, because such expenditure cannot be treated as having been incurred for business purpose. 23. The Tribunal by noting the rival submissions held that the expenses are allowed as a deduction, because the same have been incurred wholly and exclusively for the purpose of business of assessee and on considerations of commercial expediency. The Tribunal gave two reasons for the same. Firstly was that once some of the employees of the assessee were residing in the rural areas in which welfare and community development activities were carried out, therefore, it was not possible to carry out such activities in a piece-meal manner by including the employees of the assessee and excluding others, because such work like street lighting, drink....
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....at there was one central financing system, that all the units were financed by banks and that these accounts were operated from the head office and that the cashew was purchased for processing by the head office for all the units together. It was also found that there was unity of management and control. Accordingly, the Tribunal said that it was satisfied that all the units were fully interlinked and interlaced so that the inevitable inference was that all these units were one business alone. The Tribunal went on to hold that the facts were sufficient to establish a nexus between the payment of Rs 4,18,107 and the business. Because a part of the business had been affected by labour disputes, for the industrial health of the business as a whole, it was thought just and necessary that the industrial dispute in that one part of the business be stopped. This was the purpose for which the payment was made and it was, therefore, incurred for the purposes of the business. The Tribunal noted, correctly, that it was for the assessee to decide how he would conduct his business. For the purposes of continuing his business, he had to reduce the number of units from ten to six. Any incidental ....
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....s deduction from the gross income of the assessee. It was held that expenses are having nexus with assessee's business, because good physical health and mental condition of employees would improve business output and a happy employee would do a better job than another employee and therefore, there was commercial expediency in incurring the said expenses. However, the Tribunal held that it would be open for the assessing officer to consider the exact expenses incurred and summon details for the said expenses. 28. We do not see any error or perversity in the aforesaid reasoning of the Tribunal looking to the reasons mentioned by the Tribunal as narrated above. Therefore, this question is also answered in favour of the assessee and against the revenue. Environmental Expenses:- 29. The assessee had claimed expenses towards social afforestation, part of community development expenditure, by stating that huge waste dump created environmental problems and also proved hazardous in working of the mine due to erosional effect of soil during rainy season and therefore, expenses had to be incurred in covering the same by a thick forest and the expenditure including development of seve....
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....ee had not proved the genuineness of the expenditure. 33. The Tribunal held that the expenditure had been necessitated by National Coal Wage Agreement and the expenditure had been audited by the statutory auditors as well as by CAG. Therefore, the Tribunal allowed the expenditure for which the details and evidence were placed before the Assessing Officer and disallowed that part for which no evidence was placed before the Assessing Officer nor before the Tribunal. The said allowance of expenditure in-principle does not suffer from any illegality or perversity and so far as allowing of part expenditure is concerned, it is purely in the realm of facts and does not amount to any substantial question of law. Therefore, we answer this question in favour of the assessee and against the revenue. Expenditure Towards providing LPG, Medical Camp, Transit Camp, etc.: - 34. The Tribunal held that the expenditure incurred in providing LPG to the employees in lieu of coal, medical camp, transit camp expenses etc. have been incurred on account of obligations as per National Coal Wage Agreement. The Tribunal held that the finding of the Commissioner that such expenditure had no direct nex....
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....e Tribunal is in conformity with settled principles of the Act, 1961 and no error is found in the aforesaid reasoning adopted by the Tribunal. Therefore, this question is also answered in favour of the assessee and against the revenue. Overburden Removal:- 37. This is the main issue, which was the main thrust of arguments of the rival parties, i.e. the expenditure incurred towards over-burden removal, and this was the issue which was vehemently argued by the rival parties and this issue arises in most of the matters. The assessee has incurred expenditure on removal of over burden, which it has been claiming to be revenue expenditure in terms of Section 37 after claiming some part of it as capital expenditure in terms of Section 35-E till the stage the mine was deemed to be a development mine and once the mine has reached 25% of its annual rated production capacity of coal, then the said mine has been treated to be a revenue mine and the entire expenditure towards over burden removal has been treated to be a revenue expenditure and claimed as deduction by the assessee. 38. The case of the assessee is that upto the stage of the mine reaching 25% of its annual production capa....
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....he surface, which is loose soil, rocks, etc. and after removal of over burden first layer or seam of coal is exposed. After exhaustion of first layer of coal, again a layer/seam of loose soil, rocks, etc. is encountered, which are the material that are normally found in soil or ground apart from coal. This material like soil, rock and tree debris etc. have to be again removed from to access the next seam of coal and once the next seam of coal is reached, it is extracted by the mining company. In this manner, after exhausting each seam of coal again a layer of soil, rock etc. is found, is again must be removed to reach next seam of coal. In this manner successively, successive seams have to be reached and the open mining pit keeps on getting deeper and deeper as the mining progresses after removal of each seam of overburden to access the next seam of coal after exhausting one seam of coal. After each seam/layer of coal, again seam of over burden has to be removed to access the next seam of coal. 42. In nutshell, the case of the revenue that when over burden is removed, it amounts to development of mine because without removal of over burden, the seam of coal cannot be reached and....
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.... for the assessee has vehemently argued that no substantial question of law really arises in the matter and by placing reliance on judgment of Supreme Court in the case of Management of Fertilizer Corporation of India Vs. The workmen 1970 (3) SCC 867, it is vehemently argued that in case of corresponding procedure of stowing which is adopted during the process of underground mining of coal, the same has been held to be revenue expenditure by the Hon'ble Supreme Court. It is further submitted that the Income Tax Appellate Tribunal (ITAT) has properly considered all the aspects of the matter and the ITAT while passing the impugned order has rightly considered the judgment of Calcatta High Court in the matter of removal of over burden and the said expenditures have been found to be revenue expenditure and therefore, the ITAT has rightly allowed deduction of the said expenditure as revenue expenditure and there are no ingredients of capital expenditure in the said process. 45. Learned senior counsel for the assessee further argued that the revenue mines are those mines that have reached 25% of their rated capacity and until that stage they are considered as development mines. It is ....
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....it is a necessary step for mining and extraction of coal and it is not a step for development of mine or making of mine and therefore, the ITAT has correctly held that the assessee is entitled to get benefit of over burden removal expenses as revenue expenses and deducted from its profits and loss account as business expenditure. 48. It is further argued that as per Section 35(E) (2) of the Act of 1961, the deduction claimed cannot be disallowed since expenditure has been incurred. Claim is made after commencement of commercial production which is carried out since the year 1967-68 and the present matter arises from assessment year 1997-98 which is way beyond the time-line of 10 years. Learned senior counsel for the assessee has relied upon various judgments to buttress his submission to defend the order of the ITAT on the issue of over burden removal expenditure being revenue expenditure and not capital expenditure. 49. Upon going through the rival submissions of the parties, on the issue of over burden removal expense, we find that the concept of over burden removal is not at all disputed between the parties. It is not disputed that over burden is a belt or layer of soil an....
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....pital nature which are depreciable, are excluded from the operation of section 35-E (2). 53. By Section 37 of the Act of 1961, it is provided that once an expenditure does not fall within the nature described in Section 30 to 36 and not being capital expenditure or personal expenditure of the assessee shall be allowed in computing the income chargeable from profit and gain account, if spent wholly or exclusively for the purpose of business or profession. Therefore, the question has arisen in the present case whether the expenditure incurred in over burden removal is a revenue expenditure or a capital expenditure to be claimed under Section 37 of Act of 1961. 54. The Tribunal has relied on the judgment of High Court of Calcutta reported in the case of Amalgamated Jambad Syndicate Pvt. Ltd. [1978] 117 ITR 698 (Cal) and in Commissioner of Income Tax Vs. Katras Jharia Coal Co. Ltd., (1979) 118 ITR 6 (Cal). In the aforesaid cases it has been held by the High Court of Calcutta that removal of over burden and wining of coals are both continuous processes and work being carried out simultaneously from year to year and removal of over burden cannot be compared to opening of new pit be....
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....e reached and worked in phases. It considered that the coal mines are divided into units and it may be that in one unit commercial production is in full swing and coal seams are reached in phases in different directions by removing over burden over one area and thereafter obtaining the coal and selling it and then moving to other area of mine to carryout identical activities. 57. The Tribunal held that the judgment of Calcutta High Court holding removal of over burden expenses to be expenses arising in course of working of mine has to be followed and accordingly followed the said view and held that the expenses for removal of over burden are required to be treated as revenue expenditure. 58. The Tribunal also upheld the accounting methodology adopted by the assessee in which the assessee treats the over burden removal expenses upto the stage the mining reaches 25% of its annual rated capacity as capital expenses but from the next financial year the mines are treated as revenue mines and all expenditure incurred upto that date is capitalized and grouped under fixed assets while the successive expenses are treated as revenue expenditure on over burden removal expenditure and th....
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....am of over burden would amount to a capital activity because it will create asset for the company and increase the value of the mine because otherwise the mine has been exhausted. 61. In our opinion the logic adopted by the Commissioner of Income Tax that treating a mine before reaching 25% of its rated capacity amounts to be a capital mine or development mine and thereafter being a revenue mine is an artificial distinction being projected by the assessee without any sanctity of law. Therefore, in our opinion, the view of the Tribunal does not seem to be correct that the expenses incurred in removal of overburden after the mine reaches the stage of 25% of its rated annual capacity would amount to revenue expenditure and not capital expenditure. 62. We may also take analogy from Mineral Conservation and Development Rules, 1988 and succeeded by the Rules of 2017 framed by drawing authority from Mines and Minerals Development and Regulation Act, 1957. Though the said rules do not apply to coal mines by virtue of Clause-2 (ii) of the said Rules, but the definition of "development" as laid down in Clause 3(k) of the said Rules can be looked upon to draw an analogy. As per said pro....
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....is therefore a part and parcel of mining activity and is obviously and undoubtedly a revenue expenditure activity because it only enables the mining companies to lift the coal and is an activity in the course of working of mine. Whereas, as already noted by us above, removal of overburden once the coal seam has been exhausted amounts to creation of capital asset in as much as the next seam of coal is exposed by removal of the overburden. Unless the overburden is removed, then the mine stands exhausted and cannot work till the next layer of overburden is removed which is lying above the coal layer or seam. Therefore, there is no real difference whether the overburden removal is in initial stages of coal seams or is in later stages of exploiting the coal seams because after exhaustion of every coal seam mine comes to an end and it is to be developed and revived again to create a capital asset by exposing the coal seam. It cannot be equated with the activity of removal of waste material or impurities in the ore which have to be removed or set aside while extracting the ore because overburden is not mixed with the coal. Rather, it exists in layers alternating with the coal layers. Afte....
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....s. The proposition as qualified by Lord Cave in Atherton v. British Insulated and Halsby Cables Ltd. [(1926) AC 205, 213 : 10 TC 155 (HL)] that, in the absence of any special-circumstances leading to the opposite conclusion, when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or advantage for the enduring benefit of a trade, has been applied, explained and varied from time to time as the circumstances of the particular case required. The application of these principles to the various cases and the conclusions reached by courts in those cases often lead to irreconcilable results. It is because the topic itself is a troublesome one and is not rendered any the less difficult by resorting to principles. "It is not always easy", observed Romer L.J. in Golden Horse Shoe (New) Ltd. v. Thurgood [18 TC 280, 300] "to determine whether a particular asset belongs to the one category or the other" nor does it depend in any way "on what may be the nature of the asset in fact or any law". In our own court this difficulty has been put very tersely, if we may say so with respect, by Hidayatullah, J. (as he then was) in Abdul Kayoom v. Commissi....
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...., would be a revenue expenditure laid out for the acquisition of stock-in-trade. An expenditure incurred for acquiring a right to take away sand from the surface of river beds has been treated as if the sand was stock-in-trade - M. A. Jabbar v. CIT [68 ITR 493 : (1968) 2 SCR 413 : AIR 1968 SC 745] in the same way as tendu leaves have been treated by the Privy Council in Mohanlal Hargovind case [17 ITR 473] . In the former case, Bhargava, J., indicated a number of factors which led to the conclusion that the expenditure incurred by the assessee in obtaining the lease was revenue expenditure for the purpose of obtaining stock-in-trade and not capital expenditure which were: (1) that the lease was for a very short period of eleven months only; (2) that the sole right which was acquired by the assessee under the lease deed was to take away the sand lying on the surface of the leased land where no question of raising, digging or excavating for the sand before obtaining it was involved. In other words, no operations had to be performed on the land itself and "is not a case where the gravel in any true sense" as pointed out in Golden Horse Shoe (New) Ltd. case, "was won from the soil ... ....
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.... value of the right which was leased to the appellant but nonetheless the appellant still had to carry out some mining operations to extract the mineral from the pillars which was embedded in the land. If the private companies before the mica was exposed had taken the lease, they would have paid a much lesser amount which nonetheless would have been a capital expenditure. It is the labour and expense which the private companies expended that has enured for the benefit of the Government and enhanced the capital value of the lease. This is not a case, as is contended, of mica having been gotten so as to form part of the stock-in-trade of the assessee as in the case of Golden Horse Shoe (New) Ltd. v. Thurgood [18 TC 280, 300] . In that case the company had acquired rights in certain dumps of "tailings" or residuals that remained after the extraction of gold from ore taken from certain gold mines. It was contended on behalf of the revenue that the company's rights in tailings and dumps were part of the undertaking which the company was formed to acquire and any sum paid therefor was capital expenditure, and that the company's rights in the dump was the purchase of the wasting a....
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....the character of expenses shows that what has resulted in something which is to be used in the way of business. Third test which was considered by the Supreme Court was that if expenditure is part of working expenses in ordinary commercial trading it is revenue expenditure and not commercial expenditure. In addition to the aforesaid three tests, it was considered that there are some supplementary tests like outlay made for initiation of business, extension of business, for substantial replacement of equipment etc. which are necessary to resume the business and such expenses were held to be capital expenditure. The said was held in para-28 of the aforesaid judgment which is as under:- 28. In addition to these three tests, the last of which was applied again by the Judicial Committee in Mohanlal Hargovind case [(1949) 17 ITR 473 (PC)] there are some supplementary tests, which have frequently been alluded to. Lord Sands in Commissioners of Inland Revenue v. Granite City Steamship Co., Ltd. [(1927) 13 TC 1, 14] characterised as capital an outlay made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment. In that case, ther....
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....er of Income Tax Delhi Vs. Bharti Hexacom Limited, reported in (2024) 7 SCC 621 has considered in detail the difference between capital and revenue expenditures. In para-84 of the aforesaid judgment the Hon'ble Supreme Court while considering the judgment of the Madras High Court in the case of CIT Vs. Sarada Binding Works reported in 1973 SCC OnLine Madras 288 has ultimately held in para 107 of the aforesaid judgment that capital expenditure is one with a view to bring into existence an asset for enduring benefit of trade though it cannot be applied in every case and the nature of advantage acquired has to be considered in commercial sense. It is further held that when expenditure is made for extension of business then it is a capital expenditure. It is further held that when the expenditure is to bring into hands of assessee a necessary ingredient of their existing business then the expenditure is to be debited to the revenue account. It is further held that where expenditure relates to operation or working of the existing apparatus the expenditure would be revenue one. It is further held that the question has to be judged in every case in the context of business necessity and ex....
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....o the hands of the assessee a necessary ingredient of their existing business, which is important but still ancillary to the business, the expenditure is to be debited to the circulating capital (revenue account) rather than to the fixed capital (capital account). 107.4. Where there is no enlargement of the permanent structure or of capital assets and the expenditure essentially relates to the operation or working of the existing apparatus, such an expenditure would be on revenue account, vide Empire Jute Co. [Empire Jute Co. Ltd. v. CIT, (1980) 4 SCC 25 : (1980) 124 ITR 1] 107.5. The question as to whether an expenditure is capital or revenue in nature is to be judged in every case in the context of business necessity or expediency. The first aspect to be considered is whether, the expenditure is a part of the assessee's working expenditure or a part of profit earning. Further, an inquiry must be made as to, whether, the expenditure was necessary to acquire a right of permanent character, the possession of which is a condition precedent for carrying on a particular trade. In the event that the answer to the first question is in the negative and the s....
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....1981) 1 SCC 44 : (1980) 125 ITR 293]. 107.10. Another pertinent question to consider is, whether, the expenditure is incurred towards purchase of an asset, or merely of the right to use the asset for a given period of time on payment of a certain consideration for the period of intended use, vide Devidas Vithaldas & Co. [Devidas Vithaldas & Co. v. CIT, (1972) 3 SCC 457 : (1972) 184 ITR 277] Where the asset is not purchased or is not vested with the assessee, but the assessee has simply acquired a right to use the asset, the payment would be of revenue nature, vide CIT v. Modi Revlon (P) Ltd. [CIT v. Modi Revlon (P) Ltd., 2012 SCC OnLine Del 4463] ("Modi Revlon"). 69. Therefore, as already considered by us above, removal of layer of overburden to expose the next coal seam after the mine has closed upon exhausting earlier coal seam amounts to revival and extension of business because otherwise the business has to be closed down. It is not an expenditure in the nature of extraction of coal or working of mine but it is an expenditure in the nature of further development of mine or extension and revival of mine. 70. The judgment in the case Empire Jute Company Vs. CIT rep....
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....upreme Court in CIT v. Kirkend Coal Co. [1970] 77 ITR 530, that related to stowing operations, and the earlier view in Amalgamated Jambad (supra) was again followed. However, as already discussed by us above, stowing in case of underground coal mining is totally different from Over-burden removal in case of open-cast Coal mining. The purpose and nature of the two is totally different and as discussed in detail above. Stowing would be an activity in working of mine, whereas over-burden removal is not. The difference between stowing carried out in case of underground coal mining and overburden removal carried out in the case of open cast coal mining has already been discussed by us above and it has already been discussed that stowing of hollows created by underground coal mining is in the nature of working of mine because it prevents fire incidents in the underground mine and secondly it saves the ground from collapsing so that heavy machinery can be installed and operated, otherwise Coal was available for exploitation but by stowing, safety is ensured and collapse is prevented, that keeps the mine workable. Therefore, there is a fundamental difference between the said operations bec....