Tuesday 3 September 2013

SURINDER MADAN Vs. ASISTANT COMMISSIONER OF INCOME TAX,CIRCLE 22(1),










ITA 364/2013 Page 1 of 14

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ ITA No. 364/2013

Reserved on: 5

th August, 2013

% Date of Decision: 22nd August, 2013

SURINDER MADAN ....Appellant

Through Mr. Kedar Nath Tripathy, Advocate.

Versus

ASISTANT COMMISSIONER OF INCOME TAX,

CIRCLE 22(1), NEW DELHI …Respondent

Through Mr. N.P. Sahni, Advocate.

CORAM:

HON’BLE MR. JUSTICE SANJIV KHANNA

HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJIV KHANNA, J.




This appeal under Section 260A of the Income Tax Act 1961 (Act,

for short) by the assessee, an individual, relates to assessment year 2007-

08.




2. The appellant is engaged in export of garments and had incurred

an expenditure of Rs.12,72,564/- in replacing the entire floor measuring

about 9000 square feet with marble flooring in his factory and office.

This amount represents purchase cost of marble and cost of laying/fixing

the marble floor. The Assessing Officer disallowed the said amount

holding that it was capital expenditure, since it was renewal or

replacement of a profit yielding apparatus of the assessee. ITA 364/2013 Page 2 of 14

Commissioner of Income Tax (Appeals) upheld the said addition and

observed that expenditure does not fall under Section 30(a)(ii) vide order

dated 11th October, 2010. The Tribunal has upheld the view taken by the

lower authorities by the impugned order dated 17th December, 2004.

3. In the appeal, by order dated 5th August, 2013, the following

substantial question of law was framed:

“Whether the Income Tax Appellate Tribunal

was right in holding that the expenditure of

Rs.12,72,564/- for laying/fixing marble

flooring is not covered under „Current Repairs‟

as defined in Section 30(a)(ii) of the Income

Tax Act, 1961 read with the Explanation?”

4. The contention of the appellant is that the entire floor of the office

and factory premises, located at Okhla Industrial area, was in bad shape

and, therefore, the appellant had no choice but to replace the flooring.

He has submitted that the factory was purchased five years back and, due

to wear and tear, repair was necessary.




5. Section 30 of the Act reads as under:

“30. In respect of rent, rates, taxes, repairs and insurance

for premises, used for the purposes of the business or

profession, the following deductions shall be allowed—

(a) where the premises are occupied by the assessee—

(i) as a tenant, the rent paid for such premises ; and further if

he has undertaken to bear the cost of repairs to the

premises, the amount paid on account of such repairs ;

(ii) otherwise than as a tenant, the amount paid by him on

account of current repairs to the premises ;ITA 364/2013 Page 3 of 14

(b) any sums paid on account of land revenue, local rates or

municipal taxes ;




(c) the amount of any premium paid in respect of insurance

against risk of damage or destruction of the premises.

[Explanation.—For the removal of doubts, it is hereby

declared that the amount paid on account of the cost of

repairs referred to in sub-clause (i), and the amount paid

on account of current repairs referred to in sub-clause (ii),

of clause (a), shall not include any expenditure in the

nature of capital expenditure.]”




6. Explanation to the Section was inserted by Finance Act, 2003

w.e.f. 1st April, 2004 and is applicable to the year under assessment. In

present factual position, Section 30(a)(i) is not applicable as it relates to

amount spent or paid by a tenant on account of repairs. The appellant is

not a tenant. Clause (ii) to Section 30(a) applies to an occupant who is

not a tenant i.e. the appellant herein and stipulates that amount spent on

current repairs would be allowed as deduction but the explanation states

that current repairs should not include expenditure of capital nature. It

is, therefore, clear that twin conditions have to be satisfied. Firstly,

amount spent should be in nature of current repairs and secondly it

should not be in nature of capital expenditure. When twin conditions are

satisfied, deduction under Section 30(a)(ii) can be allowed.

7. In CIT vs. Saravana Spinning Mills (P) Ltd. (2007) 293 ITR 201

(SC), Supreme Court examined the expression current repairs and

observed that it denotes repairs which involves renewal. However, the ITA 364/2013 Page 4 of 14

word „repairs‟ is not to be read in isolation, since the precise term used

in the section is “current repairs”. The word repairs means to preserve

and maintain an asset i.e. in the present case the premises owned by the

assessee. All repairs are not to be treated as current repairs. The

expression “current repairs” does not mean and include repairs which

result in acquisition a new asset or to obtain a new advantage.

8. Learned counsel for the appellant has submitted that by installing

or fixing marble flooring no new asset has come into existence. We feel

that learned counsel is not appreciating the context in which the said

words explained the principle or ratio. The Supreme Court in the said

case was examining Section 31(a)(i) which relates to repair of

machinery, plant and furniture. In respect of machinery, plant and

furniture, it is of utmost relevance whether or not a new asset comes into

existence. Here we are not concerned with machinery, plant or furniture

which require constant replacement of old parts with new ones on

account of wear and tears, stress and strains etc. Replacement of parts

of a machinery normally could qualify for the revenue deduction under

the head „current repairs‟ but, as observed in Sarvana Spinning Mills

Pvt. Ltd. (supra), replacement generally would not fall under the

definition “current repairs”, though replacement of old machinery, in use

for over 40-50 years or where old parts are not available in the market, ITA 364/2013 Page 5 of 14

may fall under the expression „current repairs‟. Whether expenditure

qualifies as “current repairs” depends upon several factors like nature of

expenditure, nature of business activity, the asset subject matter of

“repair” etc.




9. The Supreme Court in CIT vs. Sri Mangayakarasi Mills P. Ltd.

(2009) 315 ITR 114 (SC), on the question whether the expenditure is

„current repairs‟ had expounded that the following tests which should be

taken into consideration:

“(i) It is a case of maintaining and preserving the

machine.




(ii) It is not a case of replacement.

(iii) It does not create any new asset.

(iv) It only restores the functional efficiency by

removing the defect.

(v) It does not increase the capacity of production. It

only prevents the loss.

(vi) It is not an independent unit and cannot be

compared with ring frames of a textile mill. It only

performed the functions of machining of gears

produced in the preceding line of manufacture by

performing earlier functions.

(vii) Quantum of repairs is not the relevant criterion

determinative of the nature of expenditure as to

whether it is current repairs or not.

(viii) Enduring benefit is no longer a criterion. After

current repairs, machine becomes usable for or number

of yeaRs. That does not mean that the expenditure on

current repairs is in the capital field.

(ix) Replacement of worn out parts in the process of

current repairs is not the replacement of the plant and

machinery itself.”




It was further held that:-ITA 364/2013 Page 6 of 14

“Moving on to the issue of `current repairs under

section 31 of the Act, the decision of this Court in CIT

v. Saravana Spinning Mills (P) Ltd. (supra) is again

relevant. This court has laid down that in order to

determine whether a particular expenditure amounts to

`current repairs the test is "whether the expenditure is

incurred to `preserve and maintain an already existing

asset and not to bring a new asset into existence or to

obtain a new advantage. For `current repairs

determination, whether expenditure is revenue or

capital is not the proper test." It is our opinion that the

entire textile mill machinery cannot be regarded as a

single asset, replacement of parts of which can be

considered to be for mere purpose of `preserving or

maintaining this asset. All machines put together

constitute the production process and each separate

machine is an independent entity. Replacement of such

an old machine with a new one would constitute the

bringing into existence of a new asset in place of the

old one and not repair of the old and existing machine.

Also, a new asset in a textile mill is not only for

temporary use. Rather it gives the purchaser an

enduring benefit of better and more efficient

production over a period of time. Thus, replacement of

assets as in the instant case cannot amount to `current

repairs‟. The decision in Saravana Mills (supra) case

clearly mentions that replacement of a derelict ring

frame by a new one does not amount to `current

repairs. Further in Ballimal Naval Kishore (supra) this

Court has held that a new asset or new/different

advantage cannot amount to `current repairs, which has

been subsequently approved in the Saravana Mills

(supra) case. For these reasons, the expenditure made

by the assessee cannot be allowed as a deduction under

section 31 of the Act. The judgment of this Court in

the Saravana Mills (supra) case mentions two

exceptions in which replacement could amount to

current repairs, namely:




Where old parts are not available in the market

(as seen in the case of CIT v. Mahalakshmi Textile

Mills Ltd., AIR 1968 SC 101, or

Where old parts have worked for 50-60 years.”

10. On the question of current repairs, it would be appropriate to refer

to an earlier decision of the Supreme Court in Ballimal Naval Kishore & ITA 364/2013 Page 7 of 14

Anr. vs. CIT (1997) 224 ITR 414 (SC). In this case referring to the

decision of the Bombay High Court in New Shorrock Spinning &

Manufacturing Co. Ltd. vs. CIT (1956) 130 ITR 338 (Bom.), it was

observed as under:




“2. The expression used in Section 10(2)(v) is "current

repairs" and not mere "repairs". The same expression

occurs in Section 30(a)(ii) and in Section 31(i) of the

Income-tax Act, 1961. The question is what is the

meaning of the expression in the context of Section

10(2). In New Shorrock Spinning and Manufacturing

Company Ltd. (supra), speaking for the Division

Bench, observed that the expression "current repairs"

means expenditure on buildings, machinery, plant or

furniture which is not for the purpose of renewal or

restoration but which is only for the purpose of

preserving or maintaining an already existing asset and

which does not bring a new asset into existence or does

not give to the assessee a new or different advantage.

The learned Chief Justice observed that they are such

repairs as are attended to as and when need arises and

that the question when a building, machinery etc.

requires repairs and when the need arises must be

decided not by any academic or theoretical test but by

the test of commercial expediency. The learned Chief

Justice observed: The simple test that must be

constantly borne in mind is that as a result of the

expenditure which is claimed as an expenditure or

repairs what is really being done is to preserve and

maintain an already existing asset. The object of the

expenditure is not to bring a new asset into existence,

nor is its object the obtaining of a new or fresh

advantage. This can be the only definition of 'repairs'

because it is only by reason of this definition of repairs

that the expenditure is a revenue expenditure. If the

amount spent was for the purpose of bringing into

existence a new asset or obtaining a new advantage,

then obviously such an expenditure would not be an

expenditure of a revenue nature but it would be a

capital expenditure, and it is clear that the deduction

which, the Legislature has permitted under Section

10(2)(v) is a deduction where the expenditure is a

revenue expenditure and not a capital expenditure.ITA 364/2013 Page 8 of 14

In taking the above view, the Bombay High Court

dissented from the view taken by the Allahabad High

Court in Ramkrishan Sunderlal v. Comm. of Incometax, U.P. [1951]19 ITR 324(All) : TC 15R 319 : 17R,

1422, where it was held that the expression "current

repairs" in Section 10(2)(v) was restricted to petty

repairs only which are carried out periodically. The

Learned Judge agreed with the view taken by the Patna

High Court in Commr. of Income-tax v. Darbhanga

Sugar Co. Ltd [1956] 29 ITR 21(Pat) : TC 15R 323

and by the Madras High Court in Commr. of Incometax v. Sri Rama Sugar Mills Ltd. [1952] 21

ITR191(Mad) : TC 16R 1068.




In Liberty Cinema v. Commissioner of Income-tax,

Calcutta [1964] 52 ITR153 (Cal): TC 16R 157, P.B.

Mukharji, J., speaking for a Division Bench of the

Calcutta High Court, held that an expenditure incurred

with a view to bring into existence a new asset or an

advantage of enduring nature cannot qualify for

deduction under Section 10(2)(v).




In our opinion the test involved by Chagla, C.J. in New

Shorrock Spinning & Manufacturing Company

Limited (supra) is the most appropriate one having

regard to the context in which the said expression

occurs. It has also been followed by a majority of the

High Courts in India. We respectfully accept and adopt

the test.




Applying the aforesaid test, if we look at the facts of

this case, it will be evident that what the assessee did

was not mere repairs but a total renovation of the

theatre. New machinery, new furniture, new sanitary

fittings and new electrical wiring were installed

besides extensively repairing the structure of the

building. By no stretch of imagination, can it be said

that the said repairs qualify as "current repairs" within

the meaning of Section 10(2)(v). It was a case of total

renovation and has rightly been held by the High Court

to be capital in nature. Indeed, the finding of the High

Court is that as against the sum of Rs. 17,000/- for

which the assessee had purchased the factory in 1937,

the expenditure incurred in the relevant accounting

year was in the region of Rs. 1,20,000/-.”




11. The said observations are most appropriate when we deal with the

question of „current repairs‟ carried out in a building. We have to



No comments:

Post a Comment