HARYANA STATE ROAD & BRIDGES DEVELOPMENT CORP vs. COMMISSIONER OF INCOME TAX PKL & ORS
What did the High Court hold?
On the first issue, the High Court held that the guarantee commission paid by an assessee is a revenue expense and allowable as a deduction. The Court relied on the Supreme Court's judgment in Commissioner of Income Tax Vs Sivakami Mills Ltd., which upheld the Madras High Court's view that guarantee commission does not bring into existence any asset of enduring nature and is distinct from capital expenditure. The Court acknowledged that the guarantee might have been for acquiring capital assets but stated that this would not make a difference for the guarantee commission itself. The revenue's reliance on the Patna High Court's dissenting view in Chhabirani Agro Industrial Enterprises Ltd. was noted, but the Supreme Court's decision in Sivakami Mills Ltd. was deemed binding. Thus, question (a) was answered in favour of the assessee, and the appeal to that extent was allowed. On the second issue, the High Court found that the Tribunal erred in refusing to allow the assessee to adduce additional evidence (the challan evidencing tax deduction and payment). The Court held that if the tax deducted at source was indeed paid to the government treasury, the disallowance under Section 40(a)(ia) would not stand. The matter was remanded to the Assessing Officer to examine the challan and determine if the tax was correctly deducted and paid. If so, the assessee would be entitled to the deduction; otherwise, the disallowance would remain. The Tribunal's order refusing additional evidence was quashed.
What were the facts?
The assessee, Haryana State Road & Bridges Development Corporation Ltd., is in appeal against the order of the Income Tax Appellate Tribunal (Tribunal) dated October 16, 2015, for Assessment Year 2010-2011. The Tribunal had confirmed the disallowance of deductions claimed by the assessee. The assessee claimed a deduction of ₹96,91,000/- as commission paid to the State of Haryana for a guarantee issued in favour of HUDCO, claiming it as a revenue expenditure under Section 37 of the Income Tax Act, 1961. The Assessing Officer disallowed this, treating it as capital expenditure. Additionally, ₹4,03,129/- was disallowed under Section 40(a)(ia) for failure to deduct tax at source. The assessee filed a revised return declaring the same income. The assessment was completed under Section 143(3).
What were the issues?
The High Court had to decide two substantial questions of law: 1. Whether the "Guarantee Fee" can be allowed as a deduction under Section 37 of the Income Tax Act, 1961, considering it as revenue expenditure or capital expenditure. The assessee contended that the commission paid for the guarantee is a revenue expenditure. The revenue argued that it is a capital expenditure. 2. Whether, in view of the facts and circumstances, the Tribunal erred in law and on facts in upholding the disallowance of ₹4,03,129/- under Section 40(a)(ia) of the Act when the expenses were paid by the appellant. The assessee argued that it had indeed deducted tax at source and paid it to the government treasury, relying on a challan, and that the Tribunal wrongly refused to admit this additional evidence. The revenue's position was that if tax was not deducted at source, the disallowance must stand.
Which sections of the Income-tax Act were involved?
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Cause title — parties, addresses and appearances
order of the assessing officer in disallowing Rs. 4,03,129/- u/s 40(a)(ia) of the Act when the same expenses have been paid by the appellant?”
The other questions of law raised in the appeal are part of these questions and are dealt with accordingly. Re: Question (a) 7. [1979] 120 ITR 211, the Madras High Court held:- “The expenditure incurred for the purchase of the machinery was undoutedly capital expenditure; for it brought in an asset of enduring advantage. But the guarantee commission stands on a different footing. By itself, it does not bring into existence any asset of an Amodh Sharma 2016.10.04 16:39 chandigarh
ITA-85-2016 (O&M) 3 enduring nature; nor did it bring in any other advantage of an enduring benefit. The acquisition of the machinery on installment terms was only a business exigency. If interest paid on a credit purchase of machinery could be held to be revenue expenditure, we fail to see how guarantee commission paid to a bank for obtaining easy terms for acquisition of the machinery could be regarded as capital payments.” (emphasis supplied)
The Supreme Court in Commissioner of Income Tax Vs Sivakami Mills Ltd. [1997] 227 ITR 465 held:- “Civil Appeal No. 6488 of 1983
Heard learned counsel for the parties.
The short question that arises for our consideration in this appeal is whether the guarantee commission paid by the assessee is a revenue expenditure and hence allowable as deduction in computing the total income in the Assessment Year 1968-69. The High Court answered the question in favour of the assessee. It was held that the guarantee commission paid by the assessee was a revenue expenditure and hence allowable as a deduction in computing the total income. The Revenue has come in appeal.
A similar question arose before the Andhra Pradesh High Court in CIT V. Akkamba Textiles Ltd. The Court held that the expenditure incurred is revenue in nature and so allowable as deduction. Civil Appeal No. 2832 of 1977 preferred against the said decision was dismissed by this Court. In view of the aforesaid decision we see no force in this appeal. Accordingly, this appeal is dismissed. There will be no order as to costs. Civil Appeal No. 9542 of 1995 Amodh Sharma 2016.10.04 16:39 chandigarh
ITA-85-2016 (O&M) 4
The question is regarding the deduction of interest on deferred payment and guarantee commission paid to the Bank. The High Court followed its earlier decision in Sivakami Mills Ltd. v. CIT and answered the question in favour of the assessee. It was held that both the payments are of revenue nature. We have dismissed the appeal preferred against the decision of the High Court rendered in Sivakami Mills Ltd. in Civil Appeal No. 6488 of 1983. In view of the said decision, this appeal is also dismissed. There will be no order as to costs.”
It is clear, therefore, that the Supreme Court held that the guarantee commission paid by an assessee is a revenue expense and, therefore, allowable as a deduction in computing the total income. It is important to note that even in that case, the Madras High Court came to the conclusion that the purchase of machinery was a capital expenditure, but the guarantee commission stands on a different footing. We will assume that in the case before us also the guarantee was issued in respect of loans taken for acquiring capital assets. In view of the judgement of the Supreme Court, it would make no difference as far as the guarantee commission is concerned. As we mentioned earlier, the guarantee was issued by the State of Haryana at the assessee’s request in favour of HUDCO. 11. [1991] 191 ITR 226. This 2016.10.04 16:39 chandigarh
ITA-85-2016 (O&M) 5 the bank guarantee commission on the ground that it was a capital expense. Mr. Putney relied upon the following observations of the Division Bench of the Patna High Court:- “At first, I would like to deal with the disallowance of the bank guarantee commission. Admittedly, this commission was paid to the Bank of Baroda in respect of its cost for securing their guarantee to the manufacturers of vanaspati plant. Therefore, the incurring of this expenditure is solely attributable to the acquisition of the plant as an asset of enduring benefit. In the case of Challapalli Sugars Ltd. v. CIT [1975] 98 ITR 167, at page 175, it has been held by the Supreme Court that: "The accepted accountancy rule for determining the cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition." Since the bank guarantee commission in question was paid for the purpose of acquiring the plant, it has to be treated as an integral part of its cost. Learned counsel for the company has placed reliance on a decision of the Madras High Court in the case of Sivakami Mills Ltd. v. CIT [1979] 120 ITR 211 in support of his contention that the bank guarantee commission is a revenue expenditure. In this case, the assessee-company had purchased some machinery on deferred payment terms and had obtained a guarantee from a bank in favour of the sellers of the machinery, in lieu whereof the bank charged certain commission. The High Court took the view that the payment of guarantee commission was a revenue expenditure. The reasons assigned are, (i) it is the option of the assessee to evolve the mode of capitalising the cost of the capital Amodh Sharma 2016.10.04 16:39 chandigarh
ITA-85-2016 (O&M) 6 asset, (ii) the rule of determining the cost of the capital assets laid down in Challapalli's case [1975] 98 ITR 167 (SC) will apply only for the period prior to the commencement of production, (iii) the bank guarantee commission was paid only, as a business exigency and as such was an integral part of the conduct of the business, and (iv) the guarantee commission per se does not itself bring into existence any asset of enduring nature. With respect, I find myself unable to agree with this view. In view of the law laid down by the Supreme Court in Challapalli's case [1975] 98 ITR 167, laying down the mode of determining the cost of a capital asset, it is now no more open to evolve new principles in this regard. Once it has been authoritatively held that “all expenditure necessary to bring such assets into existence and put them in working condition” wil form part of the cost of the asset, it is wholly irrelevant whether the asset was acquired prior to the commencement of business or subsequent to such commencement. It is also fallacious to say that it is still at the option of the assessee to capitalize or not to capitalize the expenses directly incidental to the acquisition of such assets. I may also indicate here that all the expenses made for acquisition of a capital asset are always related to the conduct of the business, nonetheless such expenses are capital in nature. In the present case, the bank guarantee commission was paid as an unavoidable incidence of bringing into existence the plant in question; therefore, this is necessarily an integral part of the cost of the capital asset in question. A similar view has been taken by the Gujarat High Court in the case of CIT v. Vallabh Glass Works Ltd. [1982] 137 Amodh Sharma 2016.10.04 16:39 chandigarh
ITA-85-2016 (O&M) 7 ITR 389. With respect, I entirely agree with this view. Consequently, I hold that the instant bank guarantee commission is a capital expenditure and is not admissible under section 37(1) of the Act.” Re: Question (b)
If indeed the assessee was bound to deduct tax at source and did not do so, the assessment order disallowing the expenditure relating to the relevant payments must be upheld.
The assessee, however, alleges to have discovered later that it had in fact deducted the tax at source and paid the same to the government treasury. The assessee relies upon a challan in that regard and has produced the same in this appeal as Annexure A-9. The assessee sought to produce the same before the Tribunal, but the Tribunal did not permit it to do so. In our opinion, this was a fit case for the Tribunal to have exercised its powers under Rule 29 of the Appellate Tribunal Rules, 1963 requiring the production of the challan evidencing the payment of the tax deducted at source in the government treasury. All that was required was to direct the authorities to examine whether the challan was genuine and whether the amount was paid into the government treasury or not in accordance with law. The ends of justice certainly required the Amodh Sharma 2016.10.04 16:39 chandigarh
ITA-85-2016 (O&M) 8 same. Even if the assessee had contended before the Assessing Officer and the CIT (Appeals) that the amount was not payable, it would make no difference, if, in fact, the amount had been paid.
In these circumstances, question (b) is decided by quashing the order of the Tribunal refusing to allow the appellant to adduce additional evidence. On this issue, however, the Assessing Officer shall examine the challan and determine whether the requisite amount of tax was deducted at source and paid over to the government treasury or not in accordance with law. If the same has been done, the assessee shall be entitled to the deductions. If not, the disallowance shall stand.
The appeal is accordingly disposed of. (S.J. VAZIFDAR) CHIEF JUSTICE (DEEPAK SIBAL) JUDGE 29.09.2016 Amodh Whether speaking/reasoned √Yes/No Whether reportable √Yes/No Amodh Sharma 2016.10.04 16:39 chandigarh
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