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Income Tax Appellate Tribunal, AHMEDABAD D BENCH, AHMEDABAD
Per Pramod Kumar VP: This appeal, filed by the Assessing Officer, is directed against the order dated 30th 1. January 2014, in the matter of assessment under section 143(3) of the Income Tax Act, 1961 for the assessment year 2009-10.
In the first ground of appeal, the Assessing Officer has raised the following grievance:
The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs. 6,77,50,013/- of balance written off, without properly appreciating the facts of the case and the material brought on record. 3. Briefly stated, the relevant material facts are as follows. During the course of assessment proceedings, the Assessing Officer noticed that the assessee has claimed deduction of Rs 6,77,50,013 on account of fixed assets and capital work in progress written off. When he probed the matter further, the assessee explained that the expenditure was incurred on development of Phase 1B Port but later on it was decided to discontinue and abandon the project. The Assessing Officer was of the view that the expenditure pertained to the prior years and on account of development of capital assets, and, therefore, could not be allowed as deduction. The Assessing Officer, accordingly, disallowed the deduction of Rs 6,77,50,103. Aggrieved, assessee carried the matter in appeal before the CIT(A). It was
ITA No.: 1196/Ahd/14 Assessment year: 2009-10 Page 2 of 5
submitted that in 2002 the assessee had entered into a concession agreement with Gujarat Maritime Board under which the company was to develop and construct Hazira Port in two phases- namely phase 1A, i.e. construction of common user facilities for servicing the waterfront and marine facilities to allow berthing, unloading and unberthing of LNG carriers calling at the port; and phase 1B, i.e. developing bulk cargo terminal on its own, or if it can identify independent third party developer, to procure, develop, operate and maintain bulk general cargo terminal by granting sub concession of its right in favour of third party developer. It was in this context that the assessee, after completing phase 1A, decided to develop the bulk general cargo terminal on its own. The assessee also incurred preliminary and feasibility expenditure like basic designing, preparing master plans, soil investigation, consultancy charges and travelling costs etc. Out of the total expenditure of Rs 6.77 crores so incurred, Rs 3.75 crore was spent in the assessment year 2007-08 and Rs 3.02 crores in assessment year 2008-09. Subsequently, on account of commercial considerations, the assessee decided not to pursue this project, and it was for this reason that the entire amount spent on this abandoned project was written off. Learned CIT(A) was thus urged to delete the disallowance. The plea was upheld by the learned CIT(A), and deleting the impugned addition of Rs. 6,77,50,013. The Assessing Officer is aggrieved of the relief so granted by the CIT(A) and is in appeal before us.
We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
We find that admittedly the deduction claimed is in respect of the expenditure incurred on an abandoned project. The factual findings in this respect is not even, and rightly so, challenged by the appellant. In any case, the expenditure in question was on part 1B of the project, and that was the project which was not eventually completed by the assessee. The short question for our adjudication thus arises as to whether the expenditure on an abandoned project is an admissible deduction in computation of business income. Hon’ble jurisdictional High Court, affirming the views of a coordinate bench and in the case of DCIT Vs Gujarat Narmada Valley Fertilizers Ltd [(2015) 57 taxmann. 250 (Guj)] has observed as follows:
We have considered the rival submissions on both the sides. While passing the order impugned in Tax Appeal No.447 of 2000, the Income Tax Appellate Tribunal has observed as under: "9. We have heard both the sides and perused the materials on record. Both the authorities below were of the view that the Seamless Steel Tube project is a new line of business of the assessee because the assessee is basically a manufacturer of fertilizers. On that ground the expenditure was not treated as revenue expenditure. In this connection, the assessee has brought on record the memorandum of Association from which we find that the main objects of the assessee company is to carry out business of all types of fertilizers, chemicals, synthetic chemical, by-products etc. Incidental or ancillary to the attainment of the main objects are to purchase, take on lease, mortgage or exchange hire, or otherwise acquire any movable or immovable property. In Clause C of the memorandum, the other objects have been incorporated. Item No.2 has already been quoted above by us. On perusal of the same, we find that one of such object was to manufacture, produce tubes, pipes, sheets etc. The management of the existing company and the proposed company of Seamless Steel Tube project was the same. The expenditure incurred by the assessee from the same fund of the company. There was a unity of control and common business
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organization, common administration by the existing Board of Directors and the present employees of the company were involved in the said project. The company's common place of business was supposed to be used to establish the Seamless Steel Tube Project. In such circumstances, it cannot be said that it is altogether a new business of the assessee company. Considering the facts involved in the present case, in our opinion, the Seamless Steel Tube Project was an expansion of the present business of the assessee which is supported by the objects mentioned in the memorandum of association. However, ultimately the project was given up by the assessee for some reason even otherwise it is a business loss of the existing company. Considering the entire circumstances of the case and the decisions which have been relied upon by the assessee, in our opinion, the Assessing Officer should have allowed the expenditure as revenue expenditure."
While passing the order impugned in Tax Appeal No.2033 of 2009, the Income Tax Appellate Tribunal has observed as under:
'14. Coming to the issue raised in Ground No.3, it is noticed that the CIT (A) has decided this issued in para-3 of his order, which reads as under:—
"10.5 I have considered the rival submission and arguments of both the sides and I find that the appellant company has incurred an expense of Rs. 32.05 Lakh on the feasibility of PET project which is a new line of business whereas a sum of Rs. 42.53 Lakhs has been incurred on power and steam unit which is for the purposes of extension of the existing business. The treatment of expenditure on both the items is different because I am of the view the Techno economic feasibility studies to identity projects that may be taken up by an assessee would be allowable as a revenue expenditure, since the expenses could be treated as facilitating trading operation for carrying on the business more efficiently giving advantage in revenue field. It was so held in CIT v. Coromandal Fertilizers [2001] 247 ITR 417 (AP) following the decision of the Supreme Court in Empire Jute Co. Ltd. v. CIT [1980] 124 ITR 1 (SC). "Once for all" payment test is inconclusive as was pointed out in Alembic Chemical Works Co. Ltd. v. CIT [1989] 177 ITR 377 (SC). Extension of assessee's business could not be treated as an activity, which will disentitle the expenditure for the purpose as was held in Kesoram Industries & Cotton Mills Ltd. v. CIT [1992] 196 ITR 845 (Cal.). It is under these circumstances expenditure incurred on CPSU amounting to Rs.42.53 lakhs by the appellant company may be treated as revenue expenditure and allowed. Since the purpose of the study was identification of new projects for existing business rather than setting up a new business. Whereas the position in respect of new PET business of the appellant company amounting to Rs. 32.03 lakhs is different. PET is a new product the manufacturer of which could be treated as a different business altogether. In E.I.D. Parry (India) Ltd. v. CIT [2002] 257 ITR 253 (Mad.), the High Court inferred the same to be different business following the guidelines provided by the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. CIT [1967] 63 ITR 65, where a dealer in cloth proceeded to set up a textile mill, which was however started, so that the loss got disallowed as capital loss. The High Court understood the facts in this case as comparable in that the assessee's project for manufacture of new methanol abandoned would not be allowed. Since the appellant company has incurred an expenditure for a feasibility study of a new business (PET) amounting to Rs.32.05 lakhs, therefore, the decision of the AO is in accordance with law and accordingly addition made is confirmed."
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Learned AR submitted that the issue is squarely covered in favour of the assessee and against the revenue as per para-2.3 of the Tribunal in assessee's own case for A.Y. 1996-97 in ITA Nos. 2768, 2769 and 2770/Ahd/1993 order dated 8-9-1999, which reads as under:—
"2.3 We have heard both the sides and perused the material on record. Both the authorities below, were of the view that Seamless Steel Tube Project is a new line of business of the assessee because the assessee is basically a manufacturer of fertilizer. On that ground the expenditure was not treated as revenue expenditure. In this connection, the assessee has brought on record the memorandum of association from which we find that the main object of the assessee company is to carry out business of all types of fertilizers, chemicals, petro chemicals, all organic and inorganic chemical, synthetic chemicals, by-products etc. Incidental, or ancillary to the attainment of the main objects are to purchase, take on lease, mortgage or in exchange hire, or otherwise acquire any movable or immovable property. In clause-C of the memorandum, the other objects have been incorporated. Item No.2 has already been quoted above by u. On perusal of the same, we find that one of such object was to manufacture, produce, tubes, pipes, sheets etc. The management of the existing company and the proposed company of Seamless steel Tube project was same. The expenditure incurred by the assessee from the same fund of the present company. There was a unity of control and common business organization, common administration, by the existing Board of Directors and the present employees of the company were involved in the said project. The company's common place of business was supposed to be used to establish the Seamless Steel Tube Project. In such circumstances, it cannot be said that it is altogether a new business of the assessee company. Considering the facts involved in the present case, in our opinion, the Seamless Steel Tube Project was an expansion of the present business of the assessee which I supported by the objects mentioned in the memorandum of association. However, ultimately the project was given up by the assessee for some reason even otherwise it is a business loss of the existing company. Considering the entire circumstances of the case and the decisions which have been relied upon by the assessee, in our opinion, the Assessing Officer should have allowed the expenditure as revenue expenses."
Learned DR has supported the order of the CIT(A).
We have considered rival submissions, facts and circumstances of the case and the Tribunal order in assessee's own case for A.Y. 1986-87 and have noticed that similar issue was subject matter of consideration of the Tribunal and was decided in assessee's favour. Relevant part of the order of the Tribunal contained in para-2.3 was reproduced above. Since revenue has not brought any decision contrary to the decision of the Tribunal (supra), we have no reason to deviate from the stand taken by the Tribunal. Consequently, following the same we allow the assessee's claim of expenditure raised in No.3, order of the CIT(A) on this issue is accordingly reversed.'
In view of above observations, in our view, the tribunal has rightly considered the first question in right perspective. The amount which has never materialized, i.e. the expenses incurred towards such project is rightly treated as revenue expense and not as capital expenditure. In that view of the matter, the question of law raised is answered in favour of the assessee and against the department.
ITA No.: 1196/Ahd/14 Assessment year: 2009-10 Page 5 of 5 6. In any case once it is not in dispute that no enduring benefit is coming into existence and the project, for which the capital expenditure was incurred, itself is being abandoned, though the work was undertaken in the course of furtherance of bonafide business interest, this has to be treated as a revenue expenditure. The well reasoned order passed by the CIT(A), therefore, meets our approval. We confirm the stand of the learned CIT(A) and decline to interfere in the matter.
Ground no. 1 is thus dismissed.
In ground no. 2 and 3, the Assessing Officer has raised the following grievances:
The Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.2,04,63,13,490/- made by the A.O., while computing the book profit u/s.115JB towards foreign exchange fluctuation loss, without properly appreciating the facts of the case and the material brought on record.
The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs. 6,77,50,013/- while computing the book profit u/s. 115JB of the Act, without properly appreciating the facts of the case and the material brought on record.”
Learned representatives fairly agree that this issue is covered in favour of the assessee, by Hon’ble Supreme Court’s judgment in the case of Apollo Tyres Ltd Vs CIT (255 ITR 273), and the relief granted by the CIT(A) is in harmony with the same principle. We, therefore, approve the conclusions arrived at by the CIT(A) and decline to interfere in the matter.
Ground no. 2 and 3 are also dismissed.
In the result, the appeal is dismissed. Pronounced in the open court today on the 4th day of March, 2019.
Sd/- Sd/- Justice P P Bhatt Pramod Kumar (President) (Vice President) Ahmedabad, dated the 4th day of March, 2019 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad