High Court Punjab-Haryana High Court

The Commissioner Of Income Tax I vs M/S Torque Pharmaceuticals Pvt. … on 15 October, 2009

Punjab-Haryana High Court
The Commissioner Of Income Tax I vs M/S Torque Pharmaceuticals Pvt. … on 15 October, 2009
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                           CHANDIGARH.

                                            ITA No.201 of 2009(O&M)
                                       Date of decision:   15.10.2009




The Commissioner of Income Tax I, Chandigarh
                                                              -----Appellant
                                Vs.
M/s Torque Pharmaceuticals Pvt. Limited, Chandigarh
                                                         ----Respondents



CORAM:-     HON'BLE MR JUSTICE ADARSH KUMAR GOEL
            HON'BLE MR. JUSTICE GURDEV SINGH


Present:-   Ms. Urvashi Dhugga, Advocate for the appellant.


Adarsh Kumar Goel,J.

1. This appeal has been preferred by the revenue

under section 260A of the Income Tax Act, 1961 (in short,

‘the Act’) against the order of the Income Tax Appellate

Tribunal, Chandigarh, Bench ‘B’, passed in ITA

No.101/Chd/2008 dated 23.9.2008 for the assessment year

2004-05, proposing to raise following substantial question

of law:-

“Whether, on the facts and in the
circumstances of the case and in law, the
Appellate Tribunal was legally justified in
holding that the expenditure of only
ITA No.201 of 2009(O&M) 2

Rs.17,15,031/- made on repair and
maintenance of building constituted capital
expenditure and thus deleting the
enhancement of Rs.17,15,031/- made by the
CIT(A)?”

2. The assessee is a manufacturer of

pharmaceuticals and made a claim for repair and

maintenance of buildings which was partly disallowed by

the Assessing Officer on the ground that the same gave

enduring benefit to the assessee. The disallowance by the

Assessing Officer was upheld by the CIT(A) but exercising

power under section 251 (1) (a) of the Act, disallowance

was enhanced. The expenditure which was allowed by the

Assessing Officer was disallowed by holding that the same

would confer advantage and would bring into existence

new asset and such expenditure was beyond the concept of

‘current repairs’ under section 31 of the Act. The Tribunal

restored the order of the Assessing Officer and set aside the

enhancement, holding:-

“If the totality of circumstances are analysed we
have found that the learned Assessing Officer
has disallowed only the expenses which were of
ITA No.201 of 2009(O&M) 3

enduring nature, like which were incurred on
brick work, cement, steel and sanitary items etc.
We are of the view that otherwise it was the duty
of the assessee to construct a building by
keeping in view the hygienic conditions since the
assessee is a manufacturer of drugs. The learned
Assessing Officer has already considered the
expenses, which were incurred for the
maintenance of existing building and were
necessary for upkeeping the building. However,
the expenses which were incurred on major
repair, are certainly is of the benefit of enduring
nature. The learned Assessing Officer has only
disallowed the expenses which apparently does
not fit into the circumference of current
repairs/minor repairs by adopting a practical
approach therefore, we upheld the assessment
order.”

3. We have heard learned counsel for the appellant.

4. Learned counsel for the appellant submitted that

the Tribunal has not applied the parameters laid down by

the Hon’ble Supreme Court in CIT v. Saravana Spinning

Mills P.Limited, (2007) 293 ITR 201 and also the tests

applied in Silver Screen Enterprises v. CIT, Patiala,
ITA No.201 of 2009(O&M) 4

(1972) 85 ITR 578 (P&H), Modi Spinning & Weaving

Mills Co.Limited v. CIT, (1993) 200 ITR 544 (Del.)

Senapathy Synams Insulations (P) Limited v. CIT,

(2001) 248 ITR 656 (Knt.) and CIT, West Bengal v.

North Dhemo Coal Company Limited, 106 ITR 592

(Cal.).

5. We are unable to accept the submission. The test

laid down for determining whether particular expenditure

was covered by the concept of ‘current repairs’ is well

known and though it may, to some extent, over-lap with

the parameters applied for determining whether

expenditure was revenue or capital with reference to

Section 37 of the Act, there may be difference to the extent

that even capital expenditure may be covered by ‘current

repairs’ in certain situations.

6. Question whether particular expenditure was

covered by the ‘current repairs’ or not, is primarily a

question of fact, depending upon correct test being applied.

Only discussion which has been pointed out in the order of

the CIT(A) with regard to the major amount involved is as

under:-

ITA No.201 of 2009(O&M) 5

“9…Therefore, the entire expenditure of
Rs.34,30,062/- is treated as capital
expenditure and the assessment is enhanced
by an amount of Rs.17,15,031/-. The assessee
would be entitled to depreciation @ 10%.”

7. As against above, the Assessing Officer also after

discussing well known judgments, concluded as under:-

“In view of above judgments, the entire expenses
claimed by the assessee on account of repair and
maintenance of building amounting to
Rs.34,30,062/- cannot be treated as revenue
expenditure. Accordingly, 50% of these
expenses which comes to Rs.17,15,031/- are
treated as capital expenditure. Since the expenses
were incurred on building, depreciation @ 10%
is allowed on this expenditure. Accordingly, a
disallowance of Rs.15,43,528/- (Rs.17,15,031/- –
Rs.1,71,503/-) is made and added to the returned
income.”

8. Thus, inspite of application of well known tests

by the Assessing officer as well as by the CIT(A), the

difference is of perception and the CIT(A) has not been

able to record any finding that the view taken by the

Assessing Officer was perverse or correct test was not
ITA No.201 of 2009(O&M) 6

applied. The Tribunal accordingly upheld the view of the

Assessing Officer.

9. After perusing the impugned order and hearing

learned counsel for the appellant, we are of the view that in

the facts found and tests applied, the question raised is not

a substantial question of law but of application of the

settled law to a fact situation.

10. Since no substantial question of law arises, the

appeal is dismissed.


                                   (Adarsh Kumar Goel)
                                           Judge


October 15, 2009                        (Gurdev Singh)
'gs'                                        Judge
 ITA No.201 of 2009(O&M)   7