1. The Income-tax Tribunal has referred the following question for the opinion of this court :
' Whether, on the facts and in the circumstances of the case, the sum of Rs. 7,200 has been rightly considered as capital expenditure '
2. The assessee is a partnership firm. It owns a cinema, known as the Neel Kamal Talkies at Bijnore. There is another cinema house at Bijnore known as the Virendra Talkies. It was run by M/s. Prakash Talkies Distributors, Delhi. The assessee entered into an agreement with M/s. Prakash Talkies Distributors under which it was agreed that in consideration of the assessee's paying a sum of Rs. 600 per month for a period of 5 years to M/s. Prakash Talkies Distributors, the latter would not exhibit any film at Virendra Talkies.
3. In the assessment proceedings under the Income-tax Act, 1961, for the assessment year 1964-65 (the relevant accounting year being the calendar year ending on the 31st December, 1963) the assessee claimed a deduction of Rs. 7,200 paid during the year to M/s. Prakash Talkies Distributors under the aforesaid agreement. The Income-tax Officer and the Appellate Assistant Commissioner rejected the claim, holding the amount to be capital expenditure. Thereafter, the Income-tax Appellate Tribunal upheld the decision of the Income-tax Officer and the Appellate Assistant Commissioner. At the instance of the assessee, the Tribunal has now made this reference?
4. It is clear that the agreement entered into between the assesseeand M/s. Prakash Talkies Distributors is one which has the effect of eliminating competition so far as the assessee is concerned. Under it M/s.Prakash Talkies Distributors is prohibited from exhibiting any films atVirendra Talkies for a period of five years. There are several decisionslaying down that payment made in order to eliminate competition is of thenature of capital expenditure.
5. As long ago as Atherton v. British Insulated and Helsby Cables Ltd.,  A.C. 205 ;  10 T.C. 155 (H.L.)., it Was pointed out that expenditure may be treated as capital expenditure when it is made not only once and for all but with a view to bringing intoexistence an asset or advantage for the enduring benefit of the trade. InAssam Bengal Cement Co. Ltd. v. Commissioner of Income-tax,  27 I.T.R. 34, 45;  1 S.C.R. 972 (S.C.). the SupremeCourt observed :
' The question however (whether expenditure is capital or revenue) arises for consideration where expenditure is incurred while the business is going on and is not incurred either for extension of the business or for the substantial replacement of its equipment...... If the expenditure is madefor acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If 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.'
6. It is not necessary that the words ' permanent ' or ' enduring ' refer to an advantage which will last for ever. That was made clear by Latham C.J. in Sun Newspapers Ltd. & Associated Newspapers Ltd. v. Federal Commissioner of Taxation, 61 C.L.R. 337 at 355. :
In Assam Bengal Cement Co. Ltd. the Supreme Court said that the right of an assessee to carry on its business unfettered by any competition, from outsiders within the area was in the nature of a capital asset. The Supreme Court pointed out that it was not a part of the working of the business bat went to appreciate the whole of the capital asset and make it more profit-yielding. In acquiring this advantage, the assessee was regarded as acquiring an enduring advantage and, therefore, the expenditure was of a capital nature.
7. In Behari Lal Beni Parshad v. Commissioner of Income-tax,  35 I.T.R. 576 (Punj.) the Punjab High Court held that a sum of money paid by the assessee to a competitor for the purpose of securing to itself a contract for the purchase of armour plates from the American Field Commission without any competition was an expenditure in the nature of capital expenditure.
8. There is next, the decision of the Orissa High Court in the case of Orissa Road Transport Co. v. Commissioner of Income-tax,  75 I.T.R. 126(Orissa) . The assessee was a road transport company. Almost all of its shares were held by the State of Orissa and the Central Government. Some of the routes were taken over by the assessee, and the permits owned by the private operators in respect of those routes were acquired for the unexpired period on payment of compensation under the Orissa Motor Vehicles (Regulation of Stage Carriage and Public Services) Act, 1947. The Stage carriage permits, it may be noted, are usually issued for a period of 3 years. The assessee claimed a deduction in the assessment proceedings under the Income-tax Act on account of the amount paid as compensation. The Orissa High Court affirmed the rejection of the claim by the income-tax authorities, holding that the expenditure was in the nature of capital expenditure. By acquiring the unexpired permits, it pointed out, the assessee got rid of competition from private operators who were in the field prior to the acquisition.
9. On behalf of the assessee, we have been referred to Mohanlal Hargovind v. Commissioner of Income-tax. The assessee carried on business as a manufacturer and vendor of country made cigarettes. For the purpose of his business he entered into short-term contracts with the Government and other owners of forests. Under the contracts, in consideration of certain sums payable by instalments, the assessee was granted the exclusive right to pick and carry away tendu leaves from the forest area. The Privy Council held that the contracts were entered into by the assessee wholly and exclusively for the purpose of supplying itself with one of the raw materials of its business, and the expenditure incurred in acquiring raw material was in a business sense an expenditure on revenue account. Reliance was also placed on Bombay Steam Navigation Co. (1953) Private Ltd. v. Commissioner of Income-tax,  56 I.T.R. 52 ;  I S.C.R. 770 (S.C.).. In that case the Supreme Court held that the payment was made by the assessee for the purpose of its business inasmuch as in the event of failure to make payment the Scindias would have enforced their lien and the business of the assessee would have come to an end. It was observed that in any event the expenditure was necessary on grounds of business expediency and incurred in order directly or indirectly to facilitate the carrying on of business.
10. The third case relied upon is Commissioner of Taxes v. Nchanga Consolidated Copper Mines Ltd,  58 I.T.R. 241, 252;  A.C. 948 (P.C.). There the payment, under consideration, was made by Nchanga to Bancroft for the right to have Bancroft out of production for a period of 12 months. The Privy Council held that the payment if as in the nature of revenue expenditure. The Privy Councilobserved:
' While, no doubt, money paid to acquire a business or to shut a business down for good or to acquire some contractual right to last for years may well be capital expenditure, but it seems a contradiction in terms to speak of what Nchanga thus acquired, which exhausted itself and was created to exhaust itself within the 12 months' period within which profits are ascertained, as constituting an enduring benefit or as an accretion to the capital or income earning structure of the business.'
11. Clearly the opinion turned on the consideration that no advantage of an enduring nature was brought into existence by the payment.
12. Finally there is the decision of the Supreme Court in Commissioner ofIncome-tax v. Kirkend Coal Co.,  77 I.T.R. 530 (S.C.) This decision need hot detain us becauseon its facts it is distinguishable. It was concerned merely with expenditureincurred by the assessee on stowing certain galleries near the pit-mouth ofthe colliery as a condition preceden for working the colliery during theaccounting year.
13. In passing, reference may be made to two other cases, Commissioner of Income-tax v. Piggot Chapman & Co.,  17 I.T.R. 425 (Cal.) and Commissioner of Income-tax v. Lahoty Brothers Ltd.,  19 I.T.R. 425 (Cal.). Both these cases were decided by the Calcutta High Court and in both of them it was held that payment made as consideration for excluding competition should be considered as revenue expenditure. We are unable, with respect, to accept the view taken in those cases.
14. We have already pointed out the facts before us. The payment claimed was made under an agreement. The agreement enured for a period of 5 years. The benefit accruing to the assessee was a benefit which extended for the period of 5 years. It resulted in the elimination of competition. In our opinion, the payment made is of a capital nature.
15. Accordingly, we answer the question referred in the affirmative. The Commissioner of Income-tax is entitled to his costs, which we assess at Rs. 200. Counsel's fee is assessed in the same figure.