B.P. Saraf, J.
1. By this reference under Section 256(1) of the Income-tax Act, 1961, at the instance of the Revenue, the Income-tax Appellate Tribunal has referred the following question of law to this court for opinion ;
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the royalty payable to Macfil Ltd., for receiving technical know-how in terms of the agreement dated December 14, 1979, was an allowable deduction for the assessment year 1980-81 when the approval by the Government to make the agreement effective, came into operation had not been received during the relevant accounting year ?'
2. This reference pertains to the assessment year 1980-81. During the previous year relevant to the above assessment year, the assessee entered into a collaboration agreement with Macfil Ltd., Switzerland, for upgrading technology and expanding its range of production. Under the agreement, the assessee was liable to pay Rs. 21,93,987 to Macfil Ltd. as lumpsum royalty for the technical know received by it. The assessee claimed deduction in respect of the above amount in the computation of its income in the previous year relevant to the above assessment year as a revenue expenditure, The Income-tax Officer rejected the claim of the assessee for deduction in the computation of the income of the assessee of the year under consideration on two grounds. First, that it was an expenditure of capital nature and hence not allowable as a deduction. Second, that the agreement under which this amount was payable was subject to the approval of the Government of India, As admittedly the agreement had not been approved by the Government during the relevant accounting period, the liability did not accrue or arise during the year under consideration.
3. The assessee appealed to the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) held that the agreement did not become effective in the relevant previous year in the absence of the approval of the Central Government and the liability did not accrue or arise in the year under consideration. It was held that on that count itself, the claim of the assessee for deduction was not allowable. In view of the above finding, the Commissioner of Income-tax (Appeals) did not consider whether the expenditure in question was capital or revenue expenditure.
4. The assessee went in further appeal to the Income-tax Appellate Tribunal ('the Tribunal'). So far as the accrual of the liability is concerned, the Tribunal held that the approval of the Government became operative retrospectively from the date of the agreement and in that view of the matter, the liability accrued in the year under consideration. So far as the controversy in regard to the nature of the expenditure is concerned, the Tribunal remanded the matter to the Commissioner of Income-tax (Appeals) for deciding afresh on the merits whether the expenditure was capital or revenue. The Revenue is aggrieved by the finding of the Tribunal that the approval granted by the Government operated retrospectively from the date of the agreement. Hence, this reference.
5. We have heard Mr. R. V. Desai, learned counsel for the Revenue, and Mr. Kotangale, learned counsel for the assessee. We have perused the facts of the case. The reference pertains to the assessment year 1980-81 ; the relevant previous year being the calendar year ended on December 31,1979. The agreement between the assessee and Macfil Ltd., Switzerland, was entered into on December 14, 1979, i.e., during the relevant accounting period. As per Clause 10 of the agreement, the agreement could be effective only on it being approved by the Government of India. In other words, the agreement was subject to the approval of the Government of India. The Government of India granted its approval on September 30,1980, i.e., in the next accounting year. The company follows the mercantile system of accounting. The question that arises for consideration is whether the liability for the payment of royalty could be deemed to have accrued or arisen before the approval of the agreement by the Government of India. Admittedly, the agreement was not approved in the year under consideration.
6. Learned counsel for the assessee submits that once the agreement is approved, the approval operates with retrospective effect from the date of the agreement. Learned counsel for the Revenue vehemently opposes this contention of the assessee. According to him, the liability to pay the royalty would arise only on the grant of approval by the Government of India and not prior to that date. He relies on the decision of the SupremeCourt in Non-such Tea Estate Ltd. v. CIT : 98ITR189(SC) in support of his contention. We have carefully considered the above decision of the Supreme Court. The Supreme Court in that case has clearly held that the liability in such a case would arise only when the Government conveyed its approval and not prior to that date. In that case, the Supreme Court, reversing the decision of the High Court, held that in view ot Section 326 of the Companies Act, 1956, which contained an absolute prohibition against the appointment or reappointment of a managing agent before approval of the Central Government was obtained, the appellant company's liability to pay the remuneration of the managing agent arose only. when the Government conveyed its approval by its letter dated September, 2, 1957, and not prior to that date. Following the above decision, in CIT v.Kirloskar Tractors Ltd. : 231ITR849(Bom) , this court has also held that the liability to pay particular sum accrued only on grant of approval by the Reserve Bank where the agreement was subject to the approval of the Reserve Bank Following the ratio of the decision of the Supreme Court in Nonsuch Tea Estate Ltd. v. CIT : 98ITR189(SC) and the decision of this court in CIT v.Kirloskar Tractors Ltd. : 231ITR849(Bom) , we are of the clear opinion that the liability to pay royalty in the instant case did not accrue or arise during the accounting year ending December 51, 1979. The liability accrued only on September 30, 1980, when the Government of India granted its approval to the agreement.
7. The question referred to us is, therefore, answered in the negative, i.e., in favour of the Revenue and against the assessee.
8. This reference is disposed of accordingly with no order as to costs.