Delhi High Court

Commissioner Of Income Tax vs Printers House (P) Ltd. on 24 July, 2000

Equivalent citations: 2000 112 TAXMAN 423 Delhi

Author: Jain

JUDGMENT

Jain, J.

In these references, at the instance of the revenue, the Tribunal has referred the following common question under section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as `the Act') for our opinion :

"Whether, on the facts and in the circumstances of the case, and on proper construction of the collaboration agreement dated 9-6-1961, the Tribunal was legally correct in holding that the entire payment of 1,25,000 Dutch Guilders was for the acquisition of patent rights by the assessee- company ?"

2. Though the references are four in number but they pertain to three assessment years, namely, assessment years 1969-70 to 1971-72, for which the relevant previous years ended on 31st December of each of the previous calendar years. The questions referred and the statements of cases drawn by the Tribunal being similar for all the years, this judgment will govern all the references. Although the Tribunal's order in respect of the assessment years 1969-70 and 1970-71 does not form part of the paper book but from the statement of the case pertaining to the said years we feel that the issue seems to have been discussed in greater detail in the Tribunal's order for the assessment year 1969-70, we will refer to the facts of that year, as illustrative.

3. The assessee, a private limited company, was initially engaged in the trading of machinery for printing. It, however, decided to go in for the manufacture of some of them. To achieve this, on 9-6-1961, it entered into an agreement with a Dutch company by the name Nederland Snelpersenpabrik Mercedes NV (hereinafter referred to as "Mercedes") for the purpose of manufacturing 'Mercedes' standard 42 X 57.5 cm. printing machine and after five years the high pile machines. As per this agreement, Mercedes was to supply to the assessee manufacturing drawings, specifications, lay outs, spare parts catalogues and photographs, etc., besides imparting training to a specified number of the assessee's staff and furnishing all technical information, expert advice and assistance concerning the use and manufacture of "Mercedes" machines. Clause 6 of the agreement provided for the consideration payable by the assessee to Mercedes for the said services. The material part of the said clause reads as under: (Quoted in the statement of the case)

"6. In consideration of the grant of these technical aids and rights and services and other assistance in respect of know-how under this agreement to the satisfaction of the Print House and Mereedes, Print House shall pay to Mercedes a sum of Dutch Guilders 1,25,000."

4. The payment was to be made at three different stages. in addition to the said amount, 25,000 Dutch Guilders were to be paid for know-how and consultation at specified intervals.

5. The agreement was approved by the Government of India on 18-2-1961. 1,25,000 Dutch Guilders were paid in the calendar year 1961, i.e., in the assessment year 1962-63. Besides, against two instalments of Dutch Guilders 12,500 each to be paid in the calendar year 1962 and calendar year 1964, a total amount of 15,000 Dutch Guilders were paid during this period. The total amount, thus, paid by the assessee to Mercedes came to Dutch Guilders 1,40,000 equivalent to Rs. 1,88,037 but as the question suggests, we are concerned with the payment of 1,25,000 Dutch Guilders. The assessee wrote off this amount in its book of account in five years and claimed 1/5 thereof as allowable deduction in each of the assessment years under reference. The claim was based on the following Circular issued by the Central Board of Direct Taxes :

"113/B. 35A. Expenses incurred on purchase of Patents Admissibility of. The question of allowing expenses incurred on the purchase of patents, for the purpose of income-tax assessments, either as an admissible deduction from business profits or by way of depreciation had been under consideration of the Government for quite sometime. It has now been decided that the expenditure incurred on purchase of patent rights should be treated as consolidated revenue expenditure by spreading it over a period of 14 years. Accordingly, such expenditure may be allowed to be written off over the above-mentioned period."

6. However, at the time of completion of the assessment, the Income Tax Officer took the view that the services to be rendered by Mercedes in terms of the said agreement were not merely in the nature of the acquisition of patents by the assessee but something more as there was no bar on the assessee from parting with that information and, therefore, the said Circular of the Board was not applicable in the case. He also held that since the expenditure had been incurred partly in 1962 and partly in 1964, this could not be allowed in the relevant assessment years. He, accordingly, rejected the claim of the assessee. Similar view was taken by the assessing officer in respect of the assessments years 1970-71 and 1971-72.

7. Aggrieved by the said disallowance, the assessee preferred appeals to the Appellate Assistant Commissioner. Before the Appellate Assistant Commissioner it was pleaded that since the assessee was able to bring out proto-type of sample machines in September 1967 and bulk production had commenced only in 1968, the assessee could write off the amount only after the actual production had commenced. Agreeing with the assessee, the Appellate Assistant Commissioner held that provisions of section 35A of the Act were applicable to the assessee's case. He also held that the claim could be allowed in the relevant previous year in terms of proviso to the Explanation to section 35. He, accordingly, directed the Income Tax Officer to allow the deduction claimed by the assessee.

8. Being aggrieved, the revenue took the matter in appeal to the Tribunal. The stand of the revenue before the Tribunal was that section 35A did not apply to the instant case as it dealt with the expenses incurred only after 28-2-1966 and, therefore, the expenditure having been incurred by the year 1964, the said section had been wrongly applied by the Appellate Assistant Commissioner. It was also argued before the Tribunal that the present was not a case of acquisition of patent rights or copyrights and the assessee had in fact bought only technical know-how which did not fall within the ambit of the aforenoted circular. The Tribunal remanded the case back to the Appellate Assistant Commissioner with certain directions, namely, to find out whether the foreign concern had patent rights and how much of the cost could be attributed to the acquisition of the patent rights, etc. After analysing the terms of the agreement afresh, the Appellate Assistant Commissioner held that the 'Mercedes' did not have a patent and trade mark for the machine; they had authorised the assessee to manufacture and not only Dutch Guilders 15,000 were payable to Mercedes for technical know-how, a further sum of Dutch Guilders 1,25,000 could also be attributed towards these services. He, however, held that payment of remaining 50 per cent of Dutch Guilders 1,25,000 could be attributed towards the acquisition of the patent rights. He, thus, came to the conclusion that besides supplying patent rights, the Mercedes had also furnished technical know-how and other services relating thereto, which could not be clubbed with patent rights. Holding that section 35A had no application to the case, but the assessee was entitled to relief under the Board's Circular dated 31-5-1961, he allowed deduction of only 1/4th of half of the said amount as deduction in the year under reference in the light of the said circular.

9. Against the said finding of the Appellate Assistant Commissioner, the assessee took the matter in further appeal to the Tribunal. It is not clear from the statement of the case, whether the revenue had preferred appeal to the Tribunal against the finding of the Appellate Assistant Commissioner that 50 per cent of the payment was towards acquisition of patent rights and that Board's said Circular was applicable to the facts of the case. The stand of the assessee before the Tribunal was that the entire amount of Dutch Guilders 1,25,000 as to acquire patent rights and it was only the other amount of Dutch Guilders 15,000 paid in 1962, which was for the purpose of acquiring technical know-how. Accepting the assessee's plea, the Tribunal observed that permission by the holders of patents to use it does not merely mean passing on the rights available under the patents but also the technical know-how as the latter is a part of the patents right and inseparable from it; the patent does not mean only the particular name but it also includes the designing technique and process involved in the manufacture of an article and all these things together would pass as patent. The Tribunal, thus, held that various services contained in the agreement relating to the patents were part and parcel of the patents themselves and could not be evaluated separately. Having found so, the Tribunal came to the conclusion that the entire amount of Dutch Guilders 1,25,000 was for the acquisition of the patent rights by the assessee. While arriving at the said conclusion by the Tribunal also referred to the letter issued by the Government of India approving the above agreement, which according to the Tribunal, indicated that the government had also treated the two payments of Dutch Guilders 1,25,000 and Dutch Guilders 25,000 separately - the former for supply of manufacturing drawings, etc., and the latter as consideration for know-how and consultancy services. On the revenue's moving applications under section 256(1), references on the aforenoted question have been made.

10. Despite service, the assessee remained un-represented. We have heard Ms. Prem Lata Bansal for the revenue.

11. The learned counsel for the revenue has strenuously urged that though manufacturing drawings, lay out specifications, catalogue or photographs may form part of a patent but the process cannot be held as a part of the patent. It is submitted that technical know-how cannot be included in the patent rights. It is, thus, asserted that the assessee having merely acquired technical know-how, its case does not fall either within the ambit of section 35A or Board's aforenoted circular and, therefore, the amount Dutch Guilders 1,25,000 paid by the assessee, had to be capitalised and that too in the relevant previous year when it was paid and not in the years under reference.

12. The question whether the expenditure is a revenue expenditure or capital expenditure is a vexed question and despite attempts by the courts to evolve principles to distinguish a capital expenditure from the revenue expenditure. It has not been possible to lay down any exhaustive test to determine the question. The answer to the question necessarily depends on the real aim, object and quality of payment. The quantum or the manner of the payment is not decisive - Assam Bengal Cement Co. Ltd. v. CIT (1955) 27 ITR 34 (SC). Therefore, each case has to be tested on its own facts and the legal principles involved in it. Thus, the issue has to be examined by reading the agreement involved as a whole and not by just picking up a particular clause pertaining to the quantum and mode of payment. Even from the commercial point of view, it cannot be ignored altogether. If under the agreement, an assessee acquires a mere licence for the use of patents, technical knowledge and the trade mark for the purpose of producing profits in the conduct of its business, the payment has to be regarded as a revenue expenditure but if on the other hand by making the payment, the assessee acquires an asset or an advantage for the enduring benefit of its business, the expenditure may be regarded as a capital outlay.

13. In the instant case, unfortunately, neither the agreement in question has been annexed with the statement of the case nor its terms have been fully set out in the statement or in any one of the orders of the Tribunal. We are, therefore, handicapped in examining the agreement as a whole. What we have before us is the afore-extracted clause (6), which only provides for the quantum and the time for payment of the various amounts as consideration, for "the grant of these technical aids and rights and services and other assistance in respect of know-how under this agreement". This clause, in our view, is not sufficient for us to test the legality or otherwise of the finding recorded by the Tribunal to the effect that various services contained in the agreement relating to the patents were part and parcel of the patents themselves and could not be evaluated separately. Even otherwise we feel that the said categorical finding recorded by the Tribunal has not specifically been challenged by the revenue in the proposed question. However, since we are not in a position to examine the various clauses of the agreement dated 9-6-1961, entered into by the assessee with Dutch company, it will not be proper for us to record any finding in that behalf. In this view of the matter, in the absence of sufficient material on record, we are unable to answer the aforenoted question referred to us.

14. Accordingly, we return the references unanswered.