High Court of KeralaDivision BenchAppeals dismissed; Tribunal’s order affirmed; q...

Commissioner of Income Tax, Thiruvananthapuram v. Malabar Industries Co. Ltd., Sherthalai

Case / Petition Number:ITR Nos. 4 of 2001; 5 of 2001; 6 of 2008 (Arising from ITA Nos. 1073/COCH/86 and 1074/COCH/86)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
  • V. G. Arun
Judgment Date
2019-03-27
Court Decision / Holding
Appeals dismissed; Tribunal’s order affirmed. The High Court left open the question for consideration in an appropriate proceeding and relied on the litigation policy, noting that the tax effect is below the policy threshold. The decision emphasizes that the Revenue’s failure to appeal the Karnataka High Court’s related decision prevents upsetting the Tribunal’s findings.
Final Disposition
Appeals dismissed; Tribunal’s order affirmed; questions not answered; matter left open for consideration in appropriate proceeding; tax effect below policy limit.

Parties to the Case

Appellants / Petitioners

  • Commissioner of Income Tax, Thiruvananthapuram

Respondents

  • M/S Malabar Industries Co. Ltd., Sherthalai

Legal Representation & Advocates

Counsels for Petitioners

  • • P.K.R. Menon, Senior Counsel
  • • Jose Joseph, SC

Counsels for Respondents

  • • P. Balakrishnan (E)
  • • Ramesh Cherian John

Case Synopsis & Summary

This Income Tax Reference concerns whether preliminary expenses incurred by a public limited company in setting up a new enterprise can be treated as revenue expenditure eligible for deduction under the Income-tax Act, and whether such setting up constitutes the business of the assessee. The assessee, Malabar Industries, amended its objects to aid a new industry (MIC Auto Ancillaries Ltd) and invested in it. The Assessing Officer disallowed the revenue deduction, viewing the expenditure as not in the course of business. The Tribunal allowed the deduction, holding that sponsoring an industrial enterprise, though not the core business, could be revenue expenditure. The Commissioner appealed, arguing that the setting up of a new company is not the business of the assessee; relying on CIT v. J.K. Synthetics Ltd, and that the Karnataka High Court later affirmed the Tribunal’s approach in the related year. The High Court of Kerala, after hearing on 27.03.2019 along with related ITRs, observed that tax effect is below policy thresholds and that the Revenue did not appeal the Karnataka decision; hence it would not disturb the Tribunal's findings. It left the question open for consideration in an appropriate proceeding, affirming the Tribunal's order and dismissing the appeals under the litigation policy.

Submissions & Arguments

Contentions of Appellants / Petitioners

The Commissioner contends that the preliminary expenses incurred in setting up a new company should be treated as revenue expenditure eligible for deduction only if they fall within the business activities of the assessee. Relying on the decision in CIT v. J.K. Synthetics Ltd, the Revenue argues that where setting up of a company is not the core business, such expenses ought not be allowed as revenue deduction. Since the Tribunal allowed the claim, the Revenue submits that the matter requires careful examination against the backdrop of whether the setting up of an ancillary enterprise falls within the assessee’s business object. The Revenue further submits that tax effects and policy considerations warrant dismissal of the appeals if the quantum is below the policy threshold.

Contentions of Respondents

The respondents (assessee) argue that sponsoring and assisting expenses toward Industrial Enterprises may not be the core business of Malabar Industries, but the expenditure arises in the course of business activity aimed at promoting ancillary industrial ventures. They rely on the Tribunal’s finding that such sponsorship was deductible as a revenue expenditure, maintaining that denying the deduction would contravene the business expediency doctrine and the practical considerations of corporate expansion. They contend that the facts show a financial commitment to venture creation, which could reasonably be treated as revenue in the context of the assessee’s business activities.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
CIT v. J.K.Synthetics Ltd193 ITR 524DistinguishedCited as a comparative precedent; the facts differ since the present case involves a non-core business activity, whereas J.K. Synthetics dealt with an assessee whose business was setting up other establishments; thus the ratio is distinguished and not applied to the present facts.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** **ITR.No. 4 of 2001** **ARISING OUT OF ITA NOS.1073/COCH/86-ASSESSMENT YEARS 1984-85 & 1985-86** **PETITIONER/S:** **COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES)** **RESPONDENT/S:** **M/S MALABAR INDUSTRIES CO.LTD., SHERTHALAI** **BY ADV. SRI.P.BALAKRISHNAN (E)** **THIS INCOME TAX REFERENCE HAVING BEEN FINALLY HEARD ON 27.03.2019, ALONG WITH ITR.5/2001, ITR.6/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** **ITR.No. 5 of 2001** **ARISING OUT OF ITA NOS.1074/COCH/86-ASSESSMENT YEARS 1984-85 & 1985-86** **PETITIONER/S:** **COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES)** ## **RESPONDENT/S:** **M/S MALABAR INDUSTRIES CO.LTD., SHERTHALAI** **BY ADV. SRI.P.BALAKRISHNAN (E)** **THIS INCOME TAX REFERENCE HAVING BEEN FINALLY HEARD ON 27.03.2019, ALONG WITH ITR.4/2001, ITR.6/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941** **ITR.No. 6 of 2008** **ORDER IN ITA 1074/1986 of I.T.A.TRIBUNAL, COCHIN BENCH** ## **PETITIONER/S:** **THE COMMISSIONER OF INCOME TAX, TRIVANDRUM.** **BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX** ## **RESPONDENT/S:** **M/S.MALABAR INDUSTRIAL CO.LTD., SHERTALLAI.** **BY ADV. SRI.RAMESH CHERIAN JOHN** ## **OTHER PRESENT:** **SRI JOSEPH KODIANTHARA SR COUNSEL, SRI RAMESH CHERIAN JOHN, SMT RUPA THARAYIL** **THIS INCOME TAX REFERENCE HAVING BEEN FINALLY HEARD ON 27.03.2019, ALONG WITH ITR.4/2001, ITR.6/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -4- ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 ## **JUDGMENT** ## **K.Vinod Chandran, J.** ## The question referred at the instance of this Court are ## as follows:- "1. Whether, on the facts and in the circumstances of the case, the preliminary expenses for setting up the new company is revenue expenditure and is eligible for deduction under the Income-tax Act? 2. Whether, on the facts and in the circumstances of the case and also in view of the fact that setting up of the company was not the 'business' of the assessee, the decision reported in 193 ITR has application? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in equating the assessee who had set up a new company with an assessee whose business is setting up of companies and is not the order one without noticing such fine distinction and hence vitiated?” 2. The brief facts to be noticed are that the assessee, a Public Limited Company having its registered office at Cherthallai and engaged in plantation business, found the ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 -5- existing business to be not profitable and hence, amended its objects clause in the Memorandum of Association by a special resolution, which speaks of rendering financial assistance to Industrial Enterprises within the Private Sector. The assessee is said to have assisted the setting up of an industry called 'MIC Auto Ancillaries Ltd' in Bangalore. The assessee also invested considerable amount by way of subscription of equity shares of the said enterprise, totalling Rs.45,10,000/-. The assessee claimed business expenditure of Rs.7,81,650/- under the head “sponsoring and assisting expenses of Industrial Enterprise”. Of the total amount, the assessee claimed Rs.3,27,148/- in the assessment year 198485 and Rs.4,55,000/- in the assessment year 1985-86. The Tribunal found in favour of the assessee. 3. The questions referred are with respect to the ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 -6- setting up of the other company not being a 'business' of the assessee and hence the Assessing Officer declined the claim of revenue expenditure. Reliance is placed on **CIT v. J.K.Synthetics Ltd [193 ITR 524],** in which the assessee had been specifically engaged in the business of setting up of other establishments. 4. The assessee, in the very next year, had shifted their business to Bangalore and in the year 1991-92, the industrial enterprise set up by the assessee called 'MIC Auto Ancillaries Ltd' folded up, not being profitable. In the said year, the loss was claimed as a revenue loss, which the Assessing Officer at Bangalore treated as a capital loss. The appellate authority, however, allowed the claim of the assessee and treated it as revenue expenditure. The Karnataka High Court is said to have affirmed the said view ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 -7- based on the decision of the Tribunal, from which the reference is placed before us. 5. The order of the Karnataka High Court is produced as **Ann: L** . We are of the opinion that the Revenue having not taken up an appeal from the decision of the Karnataka High Court, it would not be proper to upset the findings of the Tribunal at this stage. We also notice that the tax effect insofar as both the appeals are concerned would be less than that provided in the litigation policy as framed by the Central Government. Considering the above circumstances, we are of the opinion that the question need not be answered in the present case and we affirm the order of the Tribunal. However, leaving open the question to be considered in an appropriate proceeding. We reject the appeals further relying on the ITR Nos.4 & 5 of 2001 ITR No.6 of 2008 -8- litigation policy, finding the quantum in dispute to be below the monetary limit provided for in the policy to continue an appeal before the High Court. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** scl/27.3