A.C. Gupta, J.@mdashThe question for decision in this case is whether the money contributed by the assessee, a public limited company, for the
construction of a new road in the area where its factory is located to improve transport facilities is capital expenditure or revenue expenditure. The
assessment year in question is 1964-65, the relevant accounting period being in the financial year ended March 31, 1964. The assessee company
is engaged in the manufacture of chemicals; it has been receiving and despatching materials required for and produced in its factory through lorries.
The assessee along with there other public undertakings approached the Government of Kerala for laying a new road from Kalamasseri to
Udyogmandal; this area where the assessee''s factory is situate was not at the material time served by pucca roads. It was agreed that the
Government of Kerala would bear the cost of the acquisition of the land and 25 per cent of the cost of construction. The total cost to be shared by
the four companies was Rs. 1,04,550/ and the assessee''s share came to Rs. 26,100/-. The assessee company sought to deduct this amount from
its total income claiming this as revenue expenditure for the year in question. The income tax Officer disallowed the claim holding that the
assessee''s contribution was capital expenditure. The appellate Assistant Commissioner took the same view. The Appellate Tribunal, mainly relying
on the decision of the Calcutta High Court in Commiisioner of income tax v. Hindustan Motors Limited (1368) 68 ITR 301 held that the asses
see was entitled to deduct the amount as revenue expenditure. At the instance of the Commissioner of income tax, Kerala, Ernakulam, the Tribunal
referred the following question to the High Court of Kerala u/s 256(1) of the income tax Act, 1961:
Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was legally justified in allowing the expenditure of Rs. 26,100/-
being the respondent''s contribution to government for constructing a road as a permissible deduction u/s 37(1) of the income tax Act, 1961.
The High Court held that the assessee in this case obtained an advantage of an enduring nature by the construction of the road and, therefore, the
amount contributed was capital expenditure. The High Court accordingly answered the question in negative and against the assessee. In this
appeal, brought on a certificate u/s 261 of the income tax Act, 1961, the assessee challenges the correctness of the answer given by the High
Court to the question.
2. The authorities both in this country and in England have pointed out the difficulties in formulating precise rules for distinguishing capital
expenditure from revenue expenditure. The line of demarcation has been found to be very thin. Certain broad tests have however been laid down,
and of them the test suggested by Viscount Cave, L.C., in Atherton v. British Insulated and Helaby Cables Limited (1925) 10 Tax Cas 155
appears to have been largely accepted in this country. This Court in 279932 , Sitalpur Sugar Works Limited v. Commissioner of income tax, Bihar
& Orissa (1903) 49 ITR 160 and a number of other decisions has adopted the test as laid down in Atherlon''s case; to refer again to these often
quoted lines from Viscount Cave''s judgment, ""when an expenditure is made...with a view to bringing into existence an asset or an advantage for
the enduring benefit of a trade. I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for
treating such an expenditure as properly attributable not to revenue but to capital"". Referring to Ahterton''s case and certain other authorities on the
distinction between capital expenditure and revenue expenditure and the tests to be applied, this Court in Assam Bengal Company Limited v.
Commissioner of income tax observed:
If the expenditure is made for acquiring or bringing into existence an assest or advantage for the enduring benefit of the business it is properly
attributable to capital and is of the nature of capital expenditure. Of on the other hand it is made not for the purpose of bringing into existence any
such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset
or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the
payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically, the aim and
object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source
or the manner of the payment would then be of no consequence. It is only in those cases where this test is of no avail that one may go to the test of
fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating
capital. If it was part of the fixed capital of business it would be of the nature of capital expenditure and if it was part of its circulating capital it
would be of the nature of revenue expenditure.
In the case before us, the High Court applied Viscount Cave''s test and found that the expenditure made by the assessee brought into existence an
advantage for the enduring benefit of the assessee''s trade and accordingly held that this was capital expenditure.
3. Each case turns on its own facts. It is not disputed here that the correct test has been applied. Did the money spent by the assessee on
construction of the new road secure for it an enduring benefit, or was it necessary for running its business? On the facts of the case the position
seems to us clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport
facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calutta High
Court in Commissioner of Income tax v. Hindustan Motors Ltd. on which the appellate tribunal relied, is clearly distinguishable on facts; that was a
case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose
of the assessee''s business. Mr. Pai, learned Counsel for the appellant, has relied on the decision of this Court in 270605 to contend that even the
expenditure on the construction of roads could be revenue expenditure and not expenditure of a capital nature. In Lakshmiji Sugar Mills case the
assessee was a private limited company carrying on the business of manufacture and sale of sugar. Under the provisions of the U.P. Sugarcane
Regulation of Supply and Purchase Act, 1953, the assessee company was obliged to contribute certain amount for the development of roads
which were originally the property of the government and remained so even after the improvement had been made.
4. Apart from the fact that in this case the expenditure incurred was under a statutory compulsion, there was no finding that the roads were newly
made. On the facts of that case this Court was satisfied that the development of the roads was meant for facilitating the carrying on of the
assessee''s business. Lakshmiji Sugar Mills case is quite different on facts from the one before us and must be confined to the peculiar facts of that
case. On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature. The appeal
accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.