METRO GENERAL CREDITS LIMITED VS COMMISSIONER OF INCOME-TAX
1997 P T D 1518
[221 ITR 99]
[Madhya Pradesh High Court (India)]
Before Abdul Hadi and Venkatachalam, JJ
METRO GENERAL CREDITS LIMITED
Versus
COMMISSIONER OF INCOME-TAX
Tax Case Petition No.3 of 1995, decided on /01/.
th
September, 1995. Income-tax---
----Reference---Capital or revenue expenditure---Finance company-- Expenditure on raising capital by issue of shares---Tribunal justified in holding that expenditure was of capital nature---No question of law arose-- Indian Income Tax Act, 1961, Ss.37 & 256.
Obtaining capital by issue of shares is different from obtaining a loan by debentures and a loan obtained cannot be treated as an asset or advantage for the enduring benefit of the business of the assessee. On the other hand, expenditure incurred for obtaining capital by issue of shares does bring about an asset or advantage for the enduring benefit, of the business of the assessee and has to be held to be capital expenditure:
Held, dismissing the application for reference, that the Tribunal was right in its view that the expenditure incurred by the finance company doing business in leasing and hire purchasing for raising share capital would not be allowable as a revenue expenditure. No question of law arose from its order.
India Cements Ltd. v. CIT (1966) 60 ITR 52 (SC) applied.
CIT v. Kisenchand Chellaram India (P.) Ltd. (1981) 130 ITR 385 (Mad.) distinguished.
Bharat Carbon and Ribbon Manufacturing Co. Ltd. v. CIT (1981) 127 ITR 239 (Delhi); CIT v. Glaxo Laboratories India Ltd. (1990) 181 ITR 59 (Bom.) and CIT v. Nainital Bank Ltd. (1965) 55 ITR 707(SC) ref.
V. Balachandran for Petitioner.
N.V. Balasubramaniam for Respondent
JUDGMENT
ABDUL HADI, J.---This Tax Case Petition No. 3 of 1995 under section 256(2) of the Income Tax Act, 1961, is against the order, dated September 17, 1994, of the Tribunal in Revision Appeal No.226/(Mds) of 1994 in Income Tax Appeal No.447/(Mds) of 1988. By the said order, the Tribunal rejected the said application, holding that the findings arrived at by it in the above I.T.A. do not give rise to any referable question of law.
According to the assessee, the following three questions are referable.
"(1)Whether the Tribunal is right in its view that the expenditure incurred by a finance company doing business in leasing and hire purchasing for raising share capital will not be allowable as a revenue expenditure?
(2)Whether the Tribunal is right in its view that money cannot be considered to be a stock-in-trade of a leasing and financing company?
(3)Whether the Tribunal is right in its view that the assessee being a leasing and financing company doing business with money as its assets and earning profits using money as its instrument of business, the disallowance cannot be restricted to the amount invested on the fixed assets?"
Actually speaking, in the first question, which is a comprehensive one, would cover the second and third questions also. The assessee, no doubt, made a total claim with reference to an expenditure of Rs.4,73,828.51, the details of which are given in paragraph 4 of the order of the first appellate authority out of which a sum of Rs.12,390 and a sum of Rs.6,100 set out in clauses (b) and (e) therein had been already allowed as revenue expenditure and only the balance of Rs.4,55,338.51 is now in dispute. The said expenditure, whose break-up figures are given in the abovesaid paragraph 4 of the order of the first appellate authority, was incurred in the course of public issue of share capital to the extent of about Rs.14,00,000 by the. assessee. Regarding the said expenditure, the claim of the assessee was negatived by all the authorities below, including the Tribunal.
The argument of learned counsel for the assessee is that the assessee being engaged in financing of hire purchase and other leasing transactions, the increase in share capital is one of finding resources to carry on its business and hence the abovesaid expenditure is only revenue expenditure which, according to the assessee, in the present case, is similar to the expenditure that may be incurred for borrowing money for the purpose of the business of the assessee.
But, in our view, the reasoning of the Tribunal in rejecting the reference application is justified. In India Cements Ltd. v. CIT (1966) 60 ITR 52 (SC), the Supreme Court held that obtaining capital by issue of shares is different from obtaining loan by debentures and that a loan obtaining cannot be treated as an asset or advantage for the enduring benefit of the business of the assessee. On the other hand, expenditure incurred for obtaining capital by issue of shares does bring about an asset or advantage for the enduring benefit of the business of the assessee and so it has to be held only as capital expenditure. The said view has also been followed in Bharat Carbon and Ribbon Mfg. Co. Ltd. v. CIT (1981) 127 ITR 239 (Delhi). It is clear from India Cements Ltd. v. CIT (1966) 60 ITR 52 (SC) that it is irrelevant to consider the object with which the share capital is raised. In other words, the same rule has to be followed even in the case of raising or increasing the share capital for the purpose of the assessee's business of financing hire purchase or other lease transactions. The first appellate authority also has rightly said that any accretion to the capital by issue of shares enures only to the advantage of the business, whether the business is of financing or any other line of activity.
No doubt, learned counsel for the assessee relies on CIT v. Glaxo Laboratories (India) Ltd. (1990) 181 ITR 59 (Bom.): But, there, factually it was found that the assessee did nor need funds, but it needed the technical collaboration agreement to run profitably and that the motivation for the assessee to incur the expenditure in question was the expediency of ensuring the continuance of the technical collaboration. arrangement. But, in the present case, even according to learned counsel for the assessee, the assessee only needed funds and thus the motivation was entirely different here. Hence, the said decision is not applicable at all to the present facts.
No doubt, learned counsel also relied on the following observations in CIT v. Kisenchand Chellaram (India) (P.) Ltd. (1981) 130 ITR 385, 392 (Mad.):
"Without capital, the company could not have carried on the business and, therefore, the expenses incurred to increase the capital of the company is bound by with the functioning and financing of the business."
But, that decision turned on its own facts. That is why, it is observed therein even after referring to India Cements Ltd. v. CIT (1966) 60 ITR 52 (SC) thus page 392 of 130 ITR:
"It has to be held on the facts here that the sum was spent only for the purpose of business and that there is no capital element in the expenditure."
Learned counsel for the assessee also relied on CIT v. Nainital Bank Ltd. (1965) 55 ITR 707 (SC) to contradict the finding of the Tribunal that money cannot be considered stock-in-trade of the assessee, a leasing and financing company. No doubt, the Supreme Court, in the said case observed in the context of the actual question before it that cash was the stock-in-trade of a banking business. But, the context therein was whether loss of cash by dacoit was a trading loss. But that observation of the Supreme Court made in the above context, cannot refer to any cash raised by way of share capital. Certainly such cash raised by the assessee here is not his stock-in-trade.
The net result is, we concur with the order of the Tribunal in the above reference application and dismiss the tax case petition. No costs.
M.B.A./1224/FCReference answered: