SANKAR PRASAD MITRA J. - In this reference under section 66(1) of the Indian Income-tax Act, 1922, the respondent is a private limited company which acts as the managing agent of several public limited companies like the Aluminium Corporation of India Ltd.. Bihar Mines Ltd., J. k. Steel Ltd. and Hoyles Paints Ltd. The assessment year involoved is 1959-60, the corresponding previous year being the financial year ended 31st March, 1959. During the relevant period one of the directors of the respondent was sent to Europe to explore the possibilities of technical and financial collaboration with foreign concerns in the matter of manufacture of paints (this is the business of Hoyles Paints Ltd.) and hoist cranes and conveying equipments (later on manufactured by J. K. steel Ltd.) and also to acquire generally available technical knowledge about manufacture of paints, wire ropes, hoops and box-strapping. The total expense; but the Income-tax Office disallowed the claim mainly on the ground that such expense was not incurred for the purpose of the respondents business, i.e., the managing agency.
The Appellate Assistant Commissioner held that the expenses in question should be borne by the managed companies on whose behalf the respondent had incurred the expenses and, as such, the amount involved could not be charged to the respondents accounts. The Appellate assistant Commissioner sub motu considered the question whether the expenditure was of a revenue nature of capital in character. He came to the conclusion that, since the purpose of the foreign trip was explore the possibilities of technically collaboration and financial assistance, the expenditure incurred was of a capital nature.
Before the Tribunal the respondent contended that the foreign tour expenses were not of a capital nature and should have been to be laid out wholly and exclusively for the purpose of its business. The Tribunal considered the provisions of section 10(2)(xv). With regard to the first part of the question, namely, whether the amount spend partook of a capital nature not, the Tribunals finding was that such expenditure never brought in to existence any assets of an enduring nature to the respondent, and the tour being undertake in the ordinary course of business, which undoubtedly help the respondent itself in earning higher managing agency commission in future years. the expenses incurred could not be treated to be of a capital nature. The other part of the question was decided entirely on the facts. The Tribunal held that the expenses had been laid out by the respondent wholly and exclusively for the purpose of the business carried on by the respondent.
In the present reference the following question has been framed for the opinion of this court :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the foreign tour expense of Sri H. S. Singhania incurred by the assessee-company is not a capital nature ?'
Mr. Mitter, learned counsel for the Commissioner, drew pout attention to the Tribunals order at Page 12 of the paper book. The Tribunal stated that the director concerned was sent aboard with the following] object :
'(1) To explore the possibilities of technical collaboration for obtaining latest and up-to date technology in relation to the manufacture of paints which was the business of Hoyles Paints Ltd;
(3) To carry on negotiations with foreign concerns for technical and financial participation in the matter of manufacture of hoist-cranes and conveying-equipment which J. K. Steel Ltd. Proposed to undertake; and
(3) To acquire generally available technical knowledge about manufacture of paints, wire-Rupees, hoops and box-strappings.'
Learned counsel says that the first object enumerated above may be related to revenue expenditure. So far as the third object is concerned, the expenditure incurred for acquiring technical knowledge about manufacture of paints may also be related to revenue expenditure; but the expenditure incurred for gaining knowledge about wire-ropes, hoops and box-strappings would be of a capital nature. Mr. Mitter says further that the second object wholly relates to capital expenditure. in other words, having regard to the different purposes for which the expenditure was incurred, as aforesaid, this case, according to learned counsel for the Commissioner, cannot come within the scope of section 10 (2)(xv) of the Act, that is to say, it cannot be urged that the expenditure was laid out or expended wholly and exclusively for the purpose of the assessees business.
Counsel for the Commissioner referred to the case Dr. P. Vadamalayan v. Commissioner of Income-tax Here the assessee was a leading surgeon with a lucrative practice. He spend a sum of Rs. 19,538 towards a tour abroad, in the course of which he visited a number of hospital and clinics in the U. K. and the U. S. A. to study the latest technique in surgery and treatment. The Appellate Assistant Commissioner allowed deduction of only the sum of Rs. 9,769 which was found to be wholly and exclusively incurred for the purpose of the assessees profession under section 10(2)(xv), the balance being treated as the assessees personal expense. The Tribunal held that his sum was a capital expenditure but did not distribute the finding that it was incurred wholly and exclusively for the purpose of the assessees profession. The Madras High Court held that the said sum of Rs. 9,769 was not capital expenditure and was allowable under section 10(2)(xv). According to the Madras High Court, the expenditure incurred by the assessee could at but be said to be expenditure incurred by a surgeon to keep abreast of the latest technique in surgery and treatment and to maintain his efficiency in his profession, and such an expenditure was not an expenditure of a capital nature. Mr. Mitter submitted to us that this case shows that the said sum was allowed as a revenue expenditure because the surgeon concerned had incurred; but if the had incurred any expenditure to initiate any new business or profession or to purchase equipment for initiating any new business, it would not have been allowed as revenue expenditure.
The next case on which counsel for the Commission relied was the case of Seshasayee Brother Ltd. v. Commissioner of Income-tax. In this case a director of the assessee was deputed by the company managed by it to attend a conference of medical manufactures at London. The managed company bore his expenses to the extent of Rs. 9,995. The assessee claimed that advantage was taken of this opportunity to depute the director to visit other countries to acquaint himself with the manufacturing conditions and the assessee had spent a sum. of Rs. 14,625 for the directors tour. But the assessee failed to furnish details of the places the director had visited and the department and the Appellate Tribunal could not decided what the object of this visit was. The Madras High Court held that, although the Tribunal was not right in holding that the experience, if any, gained by the director was a benefit of an enduring nature and the expenditure was capital in nature, yet the Tribunal was justified in coming to the conclusion that the assessee failed to established that the sum of Rs. 14,625 was expenditure laid but wholly and exclusively for the purpose of the business. The amount was not, therefore, an allowable deduction.
It seems to us that this case is of no assistance in deciding the issue raised in this reference. Here the assessee has not failed to furnish any details or particulars asked for.
Mr. Mitter then referred us to a case decided by the Gujarat High Court. This was the case of Ambica Mills Ltd. v. Commissioner of Income-tax. The company which was a manufacturers of textile authorised a tour by the director and the superintendent of the companys mills for two purposes, namely, (i) to make an on the soft study of the latest development in the manufacture designing and processing of cloth in the United Kingdom and other countries; and (ii) to make a report on their return on the work done by the as to the latest developments in the manufacturing designing and processing of textiles seen by the representatives, and recommend as to whether the latest developments should be adopted and for that purpose, as to purchase new machinery which would bring an enduring benefit to the assess-company and which also would bring about a change in the methods of manufacturing, designing and processing. After their visit, the assessee-company did import this new improved and modern machinery for the purpose of being used in running its textile mills. The Triunal came to the conclusion that the object of this tour was to replace the old and out-of-date or obsolete machinery used in the textile mills of the assessee-company by the more modern ones and that the expenditure incurred in these circumstance related to the fixed framework of the profit-making apparatus of the assessee-company and not to its carrying on of the business and was, therefore, a capital expenditure. The Gujarat High Court held that the finding of fact by the Tribunal, though of an intermediate fact as to the object of the two tours, cannot be said to be either perverse or not based on evidence or lacking in sanctity and therefore, the High Court would not be justified in interfering with it. On the facts it was not possible for the High Court to say that the our were undertake as study tours merely to get acquainted with new method of production and new machinery or only for acquainted with new methods of production and new machinery or only for adding to the knowledge of the assessee companys representatives and, therefore, the expenses incurred were revenue expenditure. The Gujarat High Court has observed that a tour undertake for the purposes of a preliminary survey of new methods of manufacturing, designing processing and of new machinery with a view to purchase them, even if not immediately but a later stage, would be on for the purpose, of bringing into existence a capital asset and such expenditure would, therefore, be capital expenditure.
On this decision of the Gujarat High Court, Mr. Gouri Mitter has urged that some of the object of the tour as set out by the Tribunal in the instant case clearly indicate a desire to acquire new machinery and also to bring into existence new business of the managed companies. The expenses of the tour should, therefore, be treated as capital expenditure.
Learned counsel then came to the Supreme Court decision in Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax. At page 45 the Supreme Court observes :
'If the expenditure is made the for acquiring to bringing into existence an asset of 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 assets or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.'
Counsel for the revenue has urged that a close examination of the object for which the tour was undertaken by Sri H. S. Singhania as set out by the Tribunal would reveal that the expenditure was not wholly or exclusively for running the business of the managed companies or working, them with a view to produce the profits. The expenditure, therefore should be treated as a capital expenditure.
Lastly, Mr. Mitter relied on the case of Mysore Kirloskar Ltd. v. Commissioner of Income-tax. For manufacturing Capstan and Turret lathes of particular designs, the assessee, M. K. entered into an agreement with H on August 1, 1958. The agreement was to last for 15 years. H was to provide M. K. with with manufacturing technical, drawings, specifications, etc., from time to time and also supply special tools at agreed prices. The articles manufactured by the assessee were to be sold under the trade mark H. K. On the execution of the agreement, the assessee. M. K., should pay to H in respect of 'know how' to be supplied Pound 1,000 in respect of the Herbert No. 4 Capstan lathes Pound 1000 in respect of the Herbert No. 7B Combination Turent lathes : and on M. K.s invoice of all products manufactured, M. K. should pay to H 7 1/2% subject to deduction of tax. In pursuance of the agreement, the assessee, M. K., paid to H during the relevant year two sums of Pound 1,000 each, i.e., Rs. 26,713. The department and the Appellate Tribunal held that the expenditure in question was capital expenditure. The Mysore High Court has held that as the 'know-how' in question was to be utilsed not for the purpose of manufacturing any machine that the assessee was already manufacturing but for the purposes of bringing into production new types of machines solely on the basis of 'know-how' supplied by H, and the 'know-how' was to become the property of the assessee at the end the period of agreement. the sum of Rs. 26,713 was properly disallowed as a capital expenditure.
According to learned counsel for the appellant the observation of the Mysore High Court throw considerable light on the nature of the expenditure incurred in the instant reference. It was indisputably one of the object of the tour undertaken by Sri H.S. Singhania that possibilities would the exploited for starting new business with the new types of machinery and from this point of view the entire expenditure, submits Mr. Mitter, has to be treated as capital expenditure.
All the cases referred to above deal with the revenue or capital expenditure of the assessee before the authorities concerned. In the instant case the assessee is not any of the managed companies, but the managing agency company which had incurred expenses where for improvement or expansion of business or for the starting of one w business of the companies managed by it. It may be that by reason of expenses incurred by the managing agent certain assets of enduring benefit had accrued to one or the other managed company. But the purpose for which the managing agent incurred referred these expenses must be clearly borne in mind in answering the question these referred to us. The managing agent was interested in interest its own earning or argument the commission it derived from, the managed companies and it is with the amount with which we are concerned in the instant reference. We have to look into the facts of this case not to ascertain what the managed companies had gained, by the expenses which the managing agent had incurred for their benefit, but to ascertain the object or purpose for which the managing agent was spending these amounts. The object or purpose was obviously to produce the conditions or circumstances for increased income of the managing agent. From the facts recorded by the Tribunal at page 13 of the paper-book it appears that in subsequently years. From this point of view we are of opinion that the foreign tour expenses of Shri H.S. Singhania which the assessee had incurred are not expense of a capital nature, Our view is supported to a certain extent by judgment of the Bombay High Court in Tata Sons Ltd. v. Commissioner of Income-tax. In this case the assessee was a limited company. It held the managing agency of another company, Under the managing agency agreement the assessee was to be paid a commission at a certain that which was to be computed upon the net profits of the managed company. During the relevant year the assessee paid voluntarily a certain sum as its share of bonus which the managed company paid to some of its officers. The bonus paid by the managed company was not an unreasonable bonus and it was not such that a deduction could not be claimed by the managed company under section 10(2)(x) of the Indian Income-tax Act. The assessee claimed that the payment from the point of view of commercial principle what the assessee had done was something which had as its object increasing the profits of the managed company and whereby increasing its own share of the commissioner and that, therefore, the sum claimed by the assessee was wholly and exclusively expended for purposes of its business and was an allowable deduction under section 10(2)(xv) of the Act. To out mind similar principle apply to the facts of this case. Here also the managing agent incurred the foreign tour expenses of Shri H.S. Singhania with the object of increasing its own income. in our view these expenses are not of a capital nature.
The answer to the question raised in this reference is in the affirmative. The applicant will pay to the respondent the cost of this reference.
K. L. Roy J. - I agree.