COMMISSIONER OF INCOME-TAX VS MADRAS FERTILIZERS LTD., 2000 PTD-MADRAS-HIGH-COURT-INDIA 3593 (1998)

(a) Income-tax---

----Depreciation--Roads and bridges not part of plant and machinery .for purpose of grant of depreciation---Indian Income Tax Act, 1961, S.32.

(b) Income-tax---

----Business expenditure---Amortisation of preliminary expenditure-- Advertisement expenses---Allowable under S. 35D---Indian Income Tax Act, 1961, S.35D.

(c) Income-tax---

----Business expenditure---Capitalisation of pre-production expenses-- Allowable.

Held, that roads and bridges could not be treated as a part of plant and machinery for the purpose, of granting depreciation.

CIT v. Gwalior Rayon Silk Manufacturing Co. Ltd: (1992) 196 ITR 149 (SC) applied.

In view of the decision of the High Court in the case of the same assessee, Madras Fertilizers Ltd. v. CIT (1994) 209 ITR 174 (Mad.), for earlier years, the Appellate Tribunal was correct in law in allowing the capitalisation of the pre-production expenses and in holding that the assessee was entitled to deduction of advertisement expenses under section 35D of the Income Tax Act,. 1961.

Madras Fertilizers Ltd. v. CIT (1994) 209 ITR 174 (Mad.) fol.

C.V. Ratan for the Commissioner,

Nemo for the Assessee

JUDGMENT

NN. BALASUBRAMANIAN, J.- -At the instance of the Revenue, the following questions of law have been referred to us for our consideration in respect of the assessment year 1977-78:

"(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in holding that depreciation at the general rate applicable to plant and machinery should be allowed on roads and bridges?

(2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in law in not upholding the order of the Income-tax Officer as such rejecting capitalisation of the reproduction expenses?

(3) Whether, the Tribunal's finding that the assessee is entitled to deduction under section 35D of the Income-tax Act is sustainable in law and. is a reasonable view to take of the facts obtaining in this case?"

The assessee is a company and- during the course of its assessment proceedings for the assessment year 1977-78 claimed the capitalisation of pre-production expenses, depreciation on roads and bridges on the ground that they were out of the buildings which form part of the factory premises and also claimed certain deduction under section 35D of the Income-tax Act, the advertisement expenses. The Tribunal, in the appeal allowed all the claims so made by the assessee. That view of the Tribunal has been challenged by the Revenue and at the instance of the Revenue the three questions referred to above have been referred to us.

The first question that is referred to us is required to be answered in the negative, as the view of the Tribunal that the roads and bridges can be heated as. a part of plant and machinery for the purpose of granting the depreciation is plainly incorrect in view of the. decision of the Supreme Court in the case of CIT v. Gwalior Rayon Silk Manufacturing Co. Ltd. (1992) 196 ITR 149. It was held by the apex Court that roads laid within factory premises serve As a link and provide access to the buildings to carry on the business. activity of the assessee and they should be treated as part of the buildings within the meaning of section 32 of the Income Tax Act, 1961. Therefore, depreciation allowable would be at the rate on the capital applicable to the building. Our answer to the first question, therefore, is in the negative and in favour of the Revenue. The other two questions are concluded in the assessee's case as similar questions were considered by this Court in the case of Madras Fertilizers Ltd. v. CIT (1994) 209 ITR 174, for earlier assessment year and the questions were answered in favour of the assessee and against the Revenue. We find no reason to take a different view for this assessment year. Consequently, questions Nos.2 and 3 are, therefore, answered in the affirmative, against the Revenue and in favour of the assessee.

As none appeared for the assessee when the matter was called, there will be no order as to costs.

M.B.A./137/FC Order accordingly.