JUDGMENT
R.K. Abichandani, J.
1. The Tribunal, Ahmedabad, has referred the following question for the opinion of this Court under s. 256(1) of the IT Act, 1961 :
“Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the CIT was justified in passing the order under s. 263 of the Act in setting aside the assessment order.”
2. The matter relates to the asst. yr. 1976-77, in which the question cropped up as to whether the assessee-company which was doing the business of manufacturing and selling electric motors, was entitled to deduct a sum of Rs. 3,25,927 as payment of royalty made to the licensor, Jyoti Ltd., for providing it with technical know-how in the form of drawings, designs, technical documents etc., as revenue expenditure. The ITO allowed the claim. However, the CIT noted that the advantage derived by the assessee-company in consideration of the payment of the said amount was of an enduring nature, which would endure even after the license agreement was over. It, therefore, appeared to him that the payment of the said amount was of capital nature and, therefore, not admissible as a deduction in computing the income from business. The CIT, therefore, issued a show cause notice under s. 263 of the Act on the ground that the order passed by the ITO on this point was erroneous and prejudicial to the interest of the Revenue. The assessee was heard in response to the notice and it contended that the royalty paid was only a licence fee. The assessee relied upon a decision of this Court in CIT vs. Jyoti Ltd. (1979) 118 ITR 499 (Guj) : TC 16R.1249 in support of its contention that the expenditure should be treated as revenue expenditure. The CIT held that the duration of agreement was from 1st September, 1972 upto 10th March, 1982 which stood extended until terminated by either party. It was, therefore, held that the advantage derived by the assessee was of an enduring nature. The CIT held that the assessment order was erroneous and prejudicial to the interest of the Revenue and set aside the same with a direction to the ITO to examine the terms of the agreement and decide the matter afresh. The Tribunal in appeal filed by the assessee held that the expenditure in question was prima facie expenditure of capital nature as held by the CIT and, therefore, the CIT was justified in exercising his jurisdiction under s. 263 of the Act. The Tribunal made it clear that the ITO after examining the agreement and other material, would be justified in passing any order which he thinks proper on merits.
3. The assessee’s case is that the assessment order was neither erroneous nor prejudicial to the interest of the Revenue and that order of the ITO was in conformity with the provisions of law and in accordance with the decision of this Court in Jyoti Ltd. (supra) and therefore, there was no valid ground for the CIT to exercise his powers under s. 263 of the Act.
4. It will be noted from art. 4 of the licensing agreement that for the supply of additional design and manufacturing drawings and other information, necessary to disclose any modification and improvements made in the products, the licensor was to be paid by the assessee-licensee one half per cent royalty in addition to the royalty mentioned in art. 8 of the agreement. As provided by art. 4A, one set of initial drawings and technical documentation was to be supplied to the licensee free of charge. The duration of agreement as provided under art. 2 was from 1st September, 1972 upto 10th March, 1982 and even after the expiry of agreement, it was to continue in force until terminated by giving one year’s notice in writing. It would, therefore, prima facie appear that the assessee had acquired a benefit of enduring nature. As held by Hon’ble the Supreme Court in Jonas Woodhead & Sons (India) Ltd. vs. CIT (1997) 224 ITR 342 (SC), the sum paid for a benefit of enduring nature such as for obtaining technical know-how, the drawings, specifications, blueprints of production and testing equipment’s, etc., would constitute capital expenditure. The Tribunal rightly distinguished the decision of this Court in CIT vs. Jyoti Ltd. (supra) because in that case, on the basis of the terms of the collaboration agreement, it was found that the property in the specifications, drawings etc., did not pass to the Indian manufacturer and there was no question of acquisition of assets of a capital nature by the assessee so far as these drawings, designs, patterns, etc., were concerned.
The CIT, under s. 263 of the Act, is empowered to make an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment, if he considers that any order passed by the AO is erroneous in so far as it is prejudicial to the interest of the Revenue. The CIT had lawfully exercised his powers under s. 263 of the Act and taken a decision after giving the assessee an opportunity of being heard in the matter, as envisaged by that provision. The Tribunal was, therefore, right in holding that the CIT was justified in passing the order under s. 263 of the Act setting aside the assessment order and directing the ITO to take a fresh decision.
The question referred to us is, therefore, answered in the affirmative against the assessee and in favour of the Revenue. The reference stands disposed of accordingly with no order as to costs.