Income-tax---

----Capital or revenue expenditure---Company---Shares and securities---Fees paid to share registrar and to lawyer in connection with issuing rights shares---Revenue expenditure---Indian Income Tax Act, 1961, S.37.

The assessee was a public limited company. During the relevant previous year for the assessment year 1967-68, the assessee issued equity shares to existing shareholders as right shares. In connection with that the assessee spent Rs.28,000 as fees paid to the share registrars and a further amount of Rs.10,387 was paid to solicitors in connection with the raising of further capital for the company. The assessee claimed before the Income-tax Officer that such expenditure was only administrative expenditure and hence revenue in nature. The Income-tax Officer, as well as the Appellate Assistant Commissioner, on appeal, treated such expenditure as capital in nature and this was upheld by the Tribunal. On a reference:

Held, that the fees paid to the share registrars and the fees paid to the solicitors, in connection with the raising of further capital for the company were deductible as revenue expenditure.

CIT v. Kishenchand Chellaram (India) P. Ltd. (1981) 130 ITR 385.

(Mad.); Lucas T.V.S. Ltd. v. CIT (1997) 224 ITR 282 (Mad.) and Warner Hindustan Ltd. v. CIT (1988) 171 ITR 224 (AP) fol.

CIT v. Aurofood Pvt. Ltd. (1991) 187 ITR 715 (Mad.); CIT v. Motor Industries Co. Ltd. (1988) 173 ITR 374 (Kar.); CIT v. Tata Iron and Steel Co. Ltd. (1977) 106 ITR 363 (Bom.); Empire Jute Co. Ltd. v. CIT (1980) 124 ITR 1 (SC); India Cements Ltd. v. CIT (1966) 60 ITR 52 (SC) and Upper Doab Sugar Mills Ltd. v. CIT (1979) 116 ITR 928 (All.) ref.

Uttam Reddy for the Assessee.

C.V. Rajan for the Commissioner.

JUDGMENT

K. A. THANIKKACHALAM, J. ---In pursuance of the directions given by this Court in T.C.P. No.416 of 1979, under section 256(2) of the Income Tax Act, 1961, the Tribunal referred the following question for our opinion:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the expenditure of Rs.38,387 incurred by the assessee-company in connection with the issue of right shares to existing shareholders was capital in nature and not admissible as a deduction in computing the total income?"

The assessee is a public limited company engaged in the manufacturing and sale of electronic instruments, relays, fuse gears, etc. During the relevant previous year for the assessment year 1967-68, the assessee issued equity shares to existing shareholders as right shares. In connection with that the assessee spent Rs.28,000 as fees paid to the share registrars and a further amount of Rs.10,387 was paid to solicitors, Jardine Henderson Ltd., in connection with the raising of further capital for the company. The assessee claimed before the Income-tax Officer that such expenditure was only administrative expenses and hence revenue in nature. The Income-tax Officer, as well as the Appellate Assistant Commissioner, on appeal, treated such expenditure as capital in nature and hence the assessee filed an appeal before the Tribunal.

The assessee contended before the Tribunal that the company has to spend these amounts in connection with the raising of the further capital for the company and they were in the nature of administrative expenses and hence only revenue in nature. The assessee relied upon the decision of the Bombay High Court Reported in CIT v Tata Iron and Steel Co. Ltd. (1977) 106 ITR 363. The Department relied upon the decision of the Allahabad High Court in the case of Upper Doab Sugar Mills Ltd. v. CIT (1979) 116 ITR 928 in order to support its contention that what was claimed by the assessee is not revenue expenditure. However, the Tribunal on the facts treated the expenditure claimed as capital in nature.

We have heard learned counsel for the assessee who contended that the expenses involved as fees paid to the share registrars and the fees paid to tire solicitors would amount to revenue expenditure. In order to support this contention, reliance was placed upon the following decisions:

(1) CIT v. Kishenchand Chellaram (India) P. Ltd. (1981) 130 ITR 385 (Mad.);

(2) Warner Hindustan Ltd. v. CIT (1988) 171 ITR 224 (AP); and

(3) CIT v. Aurofood Pvt. Ltd. (1991) 187 ITR 715 (Mad.).

On the other hand, learned standing counsel for the Department, in support of his contention that the expenditure claimed is capital in nature, relied upon several decisions mentioned in page 673 under the caption "expenditure incurred in increasing the share capital, raising loans or issuing debentures" in the text book "The Law and Practice of Income Tax" by Kanga and Palkhivala (Eighth edition, Vo1.I) and the decision reported in CIT v. Motor Industries Co. Ltd. (1988) 173 ITR 374 (Kar.). We have heard learned counsel for the assessee as well as for the Department.

In CIT v. Kishenchand Chellaram (India) P. Ltd. (1981) 130 ITR 385, this Court while considering whether the assessee's claim for fees paid for raising capital of the company to the Registrar of Companies is revenue expenditure, held that the amount was wholly and exclusively laid out for the purpose of the business. Therefore, it is revenue in nature and deductible as such. This decision was rendered by following the decision of the Supreme Court in the case of India Cements Ltd. v. CIT (1966) 60 ITR 52 (SC).

In the decision in the case of CIT v. Aurofood Pvt. Ltd. (1991) 187 ITR 715, this Court following the decision in CIT v. Kishenchand Chellaram (India) P. Ltd. (1981) 130 ITR 385 (Mad.) mentioned above, held that the expenditure incurred by a company for amending its memorandum and articles of association and also for complying with the other formalities under the Companies Act has to be regarded as having been incurred in the fulfilment of the statutory formalities incidential to the carrying on of the business of the assessee as a company. Therefore, it is deductible as revenue expenditure.

In Warner Hindustan Ltd. v. CIT (1988) 171 ITR 224 (AP). the assessee claimed/deduction in respect of a sum of Rs.18,000 paid by it by way of legal and consultation fees in connection with the issue of bonus shares. The Andhra Pradesh High Court, following the decision of the Supreme Court in Empire Jute Co. Ltd. v. CIT (1980) 124 ITR 1, held that Rs.18,000 paid by way of legal and consultation fees in connection with the issue of bonus shares is revenue in nature and, therefore, allowed the deduction since it is revenue expenditure.

This Court also in the case of Lucas T.V.S. Ltd. v. CIT (1997) 224 ITR 282 (T. C. Nos.1137-1139 of 1982, dated January 12, 1996), held that the fees paid to the Registrar of companies for registration could be treated as revenue expenditure. .

However, learned standing counsel for the Department, relying upon the decision reported in CIT v. Motor Industries Co. Ltd. (1988) 173 ITR 374 (Kar) and other decisions as seen from the commentary by Kanga and Paiklivala (Eighth edition, Vol. l) mentioned above, submitted that the expenditure claimed by the assessee cannot be allowed as revenue expenditure. In view of the stand taken by this Court in the earlier decision and also for the reasons stated by the Andhra Pradesh High Court in the case of Warner Hindustan Ltd. v. CIT (1988) 171 ITR 224, we hold that the assessee is entitled to deduction as revenue expenditure with regard to the tees paid to the share registrars and the fees paid to the solicitors, in connection with the raising of further capital for the company. In that view of the matter, we answer the question referred to us in the negative and in favour of the assessee. No costs.

M.B.A./1422/FCReference answered.