1. This is a reference at the instance of the Revenue referring the following question of law :
'Whether, on the facts and in the circumstances of the case, it has been rightly held that payment of annual fee under 9 of the collaboration agreement was in the nature of revenue expenditure and should therefore, be allowed under section 37 of the Income-tax Act, 1961 ?'
2. The assessee is a private limited company carrying on business in the manufacture and sale of card clothing. The company was incorporated in 1961. It entered into a collaboration agreement with Graf Sales Limited of Switzerland (hereinafter to be referred to as the 'foreign company') on February 23, 1961. Clauses 3 and 9 of the collaboration agreement provide :
'3. For the consideration mentioned in clause 9 hereof, Graf shal grant to Lakshmi the sole exclusive non-transferable right to manufacture and sell in the Republic of India, the Portugueses possession in India, the Kingdom of Nepal and neighboring countries of India expect Europe, card clothing and accessories as specified in para. (2) on the basis of Graf's designs and manufacturing methods patented or unpatented.
9. During a period of ten years from the conclusion of this agreement, Graf will forward from time to time to Lakshmi any new data, specifications, processes, revised and additional manufacturing methods, drawings and improvements on their current designs of card clothing and accessories, thus enabling Lakshmi to follow without delay the latest technical developments of the Graf card and clothing and accessories. For these services as also for the licenses granted under clause 3, Lakshmi shall pay to Graf in Switzerland, free of any deduction of any kind whatsoever (including taxes, if any) an annual fee of Swiss Francs 6,000 (six thousand) on or before the last day of July of each English calendar year for a period of ten years, the first payment to be made on July 1,1961. Lakshmi shall, without any payments, place at the disposal of Graf all information relating to their experiences and own inventions and developments, if any, and obtain Graf's prior approval before adopting them. Constructional alterations should, however, not be introduced by Lakshmi before consulting Graf.'
3. For the licence granted under clause 3 and for the services rendered in pursuance of clause 9, the assessee has to pay to the foreign company an annual fee of 6,000 francs for a period of 10 years, the first payment commencing from July 1, 1961. The ITO came to the conclusion that it is in the nature of capital expenditure and disallowed the deduction claimed.On appeal, the AAC held that the consideration for the services in the shape of technical advice and for the grant of license to exploit the foreign company's patents in India is partly for services and partly in the nature of royalty and it is, therefore, on revenue account and qualified for deduction. On further appeal, the Tribunal, after analysing clauses 3 and 9 and also looking into the correspondence, came to the conclusion that the payment to the foreign company for sending periodical instruction on various points regarding raw materials, designs, drawings, etc., is only in the nature of royalty and the instructions given by the foreign company from time to time is to help the assessee in the normal running of its manufacturing business and the amount paid to the foreign company is only a revenue expenditure and should be allowed as a deduction under s. 37(1). At the instance of the Revenue, the question set out supra has been referred for being answered by this court.
4. The learned counsel for the Revenue relying on the three decisions in Fenner Woodroffe and Co. Ltd. v. CIT : 102ITR665(Mad) ; Addl. CIT v. southern Structural Limited : 110ITR890(Mad) and Jonas Woodhead & Sons (India) Ltd. v. CIT : 117ITR55(Mad) , contended that the assessee, with the technical know-how supplied by the foreign company under the collaboration agreement, has set up a plant to manufacture cotton card clothing and accessories and the supply of new data, specifications, processes, revised and additional manufacturing methods, drawings and improvements in their current designs of card clothing and accessories enabling the assessee to follow the latest technical developments is only to further augment the technical know-how data originally supplied for setting up the plant to manufacture cotton card clothing and this has resulted in an enduring benefit and a permanent advantage to the assessee-company and the annual fee paid in pursuance of clause 9 is only capital expenditure and not an expenditure on revenue account. Whether the fee paid to the foreign company is capital expenditure or revenue expenditure is to be decided with reference to the construction of the collaboration agreement and other surrounding facts and circumstances of the case and not with reference to any decided case law.
5. The foreign company has to hand over to the assessee :
1. all necessary drawings for all parts of card clothing and accessories (vide clause 4 of the agreement);
2. supply exact specifications of all raw materials used for the manufacture of card clothing and accessories (vide clause 5);
3. provide exact instructions for the manufacture of card clothing and accessories as specified in para. 2 (vide clause 6) :
4. train three qualified Indian technicians from the assessee-company's factory on terms and conditions to be agreed upon (vide clause 7).
6. For these services rendered under clauses 4 to 7 a payments of 2,75,000 Swiss francs is provided under clause 10 of the agreement. Under clause 3, the foreign company gives to the assessee the sole exclusive non-transferable right to manufacture and sell card clothing and accessories in certain territories on the designs and manufacturing methods patented or unpatented. Under clause 9, the foreign company for a period of ten years has to forward to the assessee-company any new data, specifications, processes, revised and additional manufacturing methods, drawings and improvements on their current designs of cards clothing and accessories enabling the assessee to follow without delay the latest technical developments of foreign company. For the licence granted under clause 3, i. e., right to manufacture and sell the card clothing and accessories on the basis of the foreign company's designs and manufacturing methods, patented or unpatented, and for the services rendered under clause 9, an annual payment of 6,000 francs had to be paid to the foreign company. It is significant to note that the licence granted under clause 3 or services rendered under clause 9 has nothing to do with the setting up of the plant by the assessee-company. After the setting up of the plant, the foreign company has to render certain services specified in the collaboration agreement to enable the assessee-company to follow the latest technical developments of the foreign company in the manufacture of card clothing relating to the foreign company's latest technical development in the manufacture or card clothing and is related to the carrying on or conduct of the day to day business of the assessee-company. Thus the services rendered in pursuance of clause 9 has not resulted in the acquisition of an asset or a right of a permanent character. The Tribunal is, therefore, justified in coming to the conclusion that the fee paid in pursuance of clause 9 is in the nature of revenue expenditure and is an allowable deduction in the computation of the assessee's income under s. 37. The reference is answered in the affirmative and against the Revenue. The assessee is entitled to the costs of this reference. Counsel's fee Rs.500.