Peerless Hotels Ltd., Kolkata vs Department Of Income Tax

आयकर अपील य अधीकरण, यायपीठ - "A", कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH : KOLKATA (सम ) ी महावीर संह, यायीक सद य एवं ी शामीम याहया , लेखा सद य [Before Hon'ble Shri Mahavir Singh, JM & Hon'ble Shri Shamim Yahya, AM ]

ITA No. 948/Kol/2011 A.Y 2002-03

D.C.I.T, Circle-8, Kolkata Vs. M/s. Peerless Hotels Ltd PAN: AABCP 9484D [Appellant] [Rrespondent] Appellant by : Shri Pinaki Mukherjee, JCIT/ld.DR Respondent by : Shri TKS Biswas, FCA, ld.AR सुनवाई क तार ख/Date of Hearing : 24-02-2015 घोषणा क तार ख/Date of Pronouncement: 27-02-2015 आदेश /ORDER

ी शामीम याहया , लेखा सद य Shri Shamim Yahya, Accountant Member

This appeal is filed by the revenue against the order of the ld.CIT(A) dated 09.02.2011 pertaining to assessment year 2002-03.

2. The grounds of appeal raised by the revenue read as under :-

1. That on the facts and circumstances of the case and in law, the ld.CIT(A) erred in deleting the disallowance of Rs.134.99 lac made by the Assessing Officer as capital expenditure on the ground of renovation of building and its civil structure in relation to the assessment year 2002-03.

2. That on the facts and circumstances of the case and in law, the ld.CIT(A) erred in deleting the disallowance of rs.52.84 lac made by the Assessing Officer as capital expenditure incurred on account of ventilation, air-conditioning, water supply, fire protection equipments and electrical wiring in relation to the assessment year 2002-03.

3. That on the facts and circumstances of the case and in law, the ld. CIT(A) erred in deleting the disallowance of Rs.28.71 lac made by the Assessing Officer as capital expenditure incurred on toilet construction in relation to the assessment year 2002-03.

4. That on the facts and circumstances of the case and in law, the ld.CIT(A) erred in deleting the disallowance of Rs.51.41 lac made by the Assessing Officer as capital expenditure incurred on account of major repairs and maintenance in relation to the assessment year 2002-03.

3. In this case the AO considered the assessee's claim of Rs.2,67,95,200/- as renewal and replacement expenditure. The AO was of the opinion that the renovation and refurbishment work done by the assessee gave benefit of enduring nature to the assessee. The AO further observed that the claim of the assessee was that major structural work included that of basement, 2 ITA No.948/Kol/2011-A-AM M/s.Peerless Hotels Ltd

columns, beams, roof cover, main building (different floors). The AO has referred to the decision of the Hon'ble Supreme Court in the case of Ballimal Naval Kishore Vs. CIT (1997) reported in 224 ITR 414 (SC). He concluded that expenditure debited to P & L a/c on account of Renovation and Refurbishment amounting to Rs.2,67,95,210/- is in the nature of capital expenditure and is not allowable as revenue expenditure. AO's order in this regard is as under:-

"It was observed from the return that the assessee claimed Rs.2,67,95,200/- as renewal and replacement (Schedule 15 of Balance Sheet- Operating and Administrative Expenses). Further, it was also noticed from the Notes on accounts in the Annual Report for the period ended on 31.03.2002 that the Directors have given the following comment on page 4 of the Report:

"The company has completed the first phase of renovation and refurbishment work at Peerless Inn, Kolkata during the year emphasis being given on improvement of utility and other services, structural and other improvements of the building etc. This would improve the level of guest comfort to a large extent and is expected to be rewarding in future. The first phase of the said renovation and refurbishment work was completed at a cost of Rs.558.76 lakhs, of which capital expenditure was of the order of Rs.334.39 lakhs and expenditure of revenue nature, like repairs, professional services etc. was of the order of Rs.224.37 lakhs. The entire amount of the said revenue expenditure of Rs.224.37 lakhs was charged off to P & L account during the final year 2001-02 under appropriate heads ..."

The assessee on its own stated above that the renovation and refurbishment work gave benefit of enduring nature to the assessee and is expected to be rewarding in future as major renovation and refurbishment work was undertaken including structural work by the assessee company. It therefore appeared that the entire expenses are in the nature of capital expenditure . As the amount of Rs.558.76 lakhs spent on repairs included expenses claimed by the assessee as Revenue Expenditure in the P & L A/c, the expenses which are not allowable were allowed to the assessee. Accordingly, notice u/s. 148 of the I.T was issued to the assessee on 02.08.2006. Later notice u/s. 143(2)(ii) of the Act was issued on 27th July 2007 and notice u/s. 142(1) of the Act was issued on 16th August, 2007. In response, the A/R, Sri P.K Ganguly appeared for the case on different dates and filed details.

It is observed from the submission of the assessee that major structural work including that of Basement, Columns, Beams, Roof cover, Main building (different floors) was carried out by the assessee. The assessee company claimed that the repairs were allowable as per the provisions of Section 30(a)(i) of the I.T Act as applicable in the instant year.

The renovation and refurbishment work done by the assessee is not in the nature of current repairs but were in the nature of major renovation work. Hon'ble Supreme Court of India held in the case of Ballimal Naval Kishore - vs- CIT [1997] reported in 224 ITR 414 (SC) that expenses on renovation is in the nature of capital expenditure.

3 ITA No.948/Kol/2011-A-AM M/s.Peerless Hotels Ltd

In view of the above, entire expenses debited to P&L a/c on account of Renovation and Refurbishment amounting to Rs.2,67,95,210/- is in the nature of Capital Expenditure and is not allowable as revenue expenditure. Accordingly, the claim of the assessee company is denied and the amount claimed in the P&L a/c is added back to the total income of the assessee. However, the depreciation is being allowed considering the addition under Block of Assets of Building and in absence of details of date of addition a rate of 50% of normal depreciation i.e. 20% (depreciation as applicable on Building during Assessment Year 2002-03). Therefore, total depreciation allowed is Rs.26,79,520/- (50% of 20% of Rs.2,67,95,200)."

4. Before the ld.CIT(A) the assessee made the submissions and referred to certain case laws. The ld.CIT(A) reproduced the same in his appellate order. The ld.CIT(A) observed that the assessee is tenant in respect of the property to which repairing was carried out by the assessee. The ld. CIT(A) observed that as per assessee's explanation the management of the assessee company, being concerned about the decline in occupancy rate and on the basis of inputs received from house keeping department of the hotel about guest complaints of musty smell in hotel rooms, appointed consultants to investigate the reasons thereof. It was explained that extensive repairs to the building were carried out on the basis of the advice of technical experts but no structural alternations were made to the building. No remodeling was carried out. The repairs were made to preserve the building and to make up the damage already happened to the building in the past and also to refurbish the rooms for better occupancy. The ld.CIT(A) further referred to the case laws of the Hon'ble Calcutta High Court in the case of CIT vs. ICI(India) Pvt. Ltd (1983) 139 ITR 105, the Hon'ble Bombay High Court in the case of CIT vs. Oxford University Press (1977) 108 ITR 166 and the Hon'ble Bombay High Court in the case of Gulamhussein Ebrahim Matcheswlla v. CIT (1974) 97 ITR 24 (Bom). The ld.CIT(A) further observed that the AO without considering the detailed submissions of the assessee has relied on wrongful decision of the Hon'ble SC in the case of Balimal Nawal Kishore (1977) 224 ITR 417.

5. After considering the above submissions of the assessee the ld. CIT(A) has held as under:-

"The ratio of the above discussed case laws in nutshell is that if the expenditure results in bringing into existence a new asset or a new advantage to the assessee, then it is to be treated of capital nature but where the expenditure is incurred to remedy the effect of several years'of wear and tear or neglect or to preserve and maintain an already existing asset, in that case it is to be allowed as revenue expenditure. The mere quantum of expenditure is not by itself decisive of the question whether it is of the nature of revenue or capital. A sum can be allowed as cost of repairs even though the expenditure in a particular year is heavy on account of the fact that it is undertaken to remedy the effect of several years of 4 ITA No.948/Kol/2011-A-AM M/s.Peerless Hotels Ltd

wear and tear or neglect and also in spite of the fact that such expenditure may not be necessary for several years to come after repairs have been effected.

From the facts of the instant case, it is observed that the impugned expenditure was incurred by the assessee to remedy the effect of several year of wear and tear and neglect and no new asset had come into existence as a result of such expenditure. Further, as regards the repairs to the building is concerned, another vital fact noticed is that the assessee is not the owner of the building but is only a tenant. The insertion of Explanation after clause (c ) of Section 30 which lays down that the allowance of expenditure on account of the cost of repairs to a tenant of a premises rented by him shall not include any expenditure in the nature of capital expenditure which came into being by the Finance Act 2003 with effect from 01.04.2004, shall apply in re3lation to assessment year 2004-05 onwards. Since, the said Explanation was not on statute during the period relevant to assessment year under consideration, the entire expenditure incurred by the assessee towards repair of the building occupied by it as tenant, is to be allowed to it as revenue expenditure by virtue of sub-clause (i) of clause (a) of section 30 of the Act.

Therefore, in the light of the above discussion, it is held that the expenditure of Rs.2,67,95,000/- incurred by the assessee towards "repairs"is to be allowed as revenue expenditure. Accordingly, the AO is directed to allow the impugned amount as revenue expenditure to the assessee and withdraw the depreciation allowed on the same in the assessment order."

6. Against the above order, the revenue is in appeal before us.

7. We have heard both the ld. Counsel and perused the record. The ld.DR submitted that the assessee is running a hotel. In the hotel building huge amount of capital expenditure have been incurred, which have been termed as repairs. The ld.DR has submitted that the assessee itself admitted that the assessee obtained benefit of enduring nature from the expenditure. He further submitted that when there is no dispute that the assessee obtained benefit of enduring in nature, the expenditure involved was capital in nature and it cannot be treated as repair expenditure. The ld. DR further submitted that section 30 and 31 do not permit allowance as revenue expenditure, which are in the nature of capital expenditure. Hence, the ld.DR submitted that since expenditure involve increased life of the asset of the assessee, the expenditure should be classified as capital expenditure.

7.1 The ld. Counsel of the assessee on the other hand has relied on the decision of the ld.CIT(A). He also relied on the decisions as referred to by the ld.CIT(A). He submitted that the ld. CITA) after considering the submissions of the assessee has rightly concluded that expenditure involved was revenue in nature. He submitted that the assessee company had engaged consultants and upon consultants advice it has carried out repairs and renovation.

5 ITA No.948/Kol/2011-A-AM M/s.Peerless Hotels Ltd

Though he accepted that this expenditure enhanced the life of the building he submitted that expenditure was revenue in nature. Hence, the same has to be allowed as revenue expenditure. 7.2. Upon careful consideration, we note that the assessee itself has accepted that the renovation and refurbishment work done by the assessee was meant to bring an advantage of enduring nature. When the renovation and refurbishment work done by the assessee gives benefit of enduring nature to the assessee, it is settled law that the same qualifies as capital expenditure. The AO observed that major structural work including that of basement, columns, beams, roof cover, main building (different floors) was carried out by the assessee. In these circumstances, the AO has opined that expenditure involved was capital in nature.

8. As against the above the ld. CIT(A) accepted the expenditure as revenue in nature. We note that the ld.CIT(A) himself has accepted that when the expenditure results in bringing into existence a new asset or a new advantage to the assessee the it is to be treated as capital nature but where the expenditure is incurred to remedy the effect of several years'of wear and tear or neglect or to preserve and maintain an already existing asset, in that case it is to be allowed as revenue expenditure. Still he has ignored the AO's finding that benefit of enduring occurred to the assessee. Ld.CIT(A) has not cogently dislodged this finding. We find that in making the above discussion the ld.CIT(A) has not examined the nature of renovation & refurbishment work done by the assessee in detail. The ld.CIT(A) has only considered the theoretical aspect and after considering the submissions of the assessee concluded that expenditure involved was revenue in nature. As expounded by the Hon'ble Apex Court in the case of CIT Vs. Saravana Spinning Mills P.Ltd reported in 293 ITR 201, that the current repair expenditure is incurred to "preserve & maintain" an already existing asset. The expenditure which results to bring a new asset into existence or to obtain a new advantage can not be termed on current repair. Hence, in our considered view such an order of the ld.CIT(A) is not sustainable. However, it is also to be accepted that the AO has also not examined the issue in detail regarding the nature of expenditure incurred by the assessee. In this regard, we note that the Hon'ble Apex Court in the case of Kapurchand Shrimal Vs. CIT reported in (1981) 131 ITR 451(SC) has held that it is the jurisdiction as well as the duty of the appellate authority to correct the lacunae in the proceedings under appeal and remit the case if needed. In this view of the matter, in our considered opinion the issue needs to be remitted the matter to the file of the AO. The AO is directed to examine the issue in detail regarding the nature of expenditure incurred by the assessee and then decide the same afresh as per law.

6 ITA No.948/Kol/2011-A-AM M/s.Peerless Hotels Ltd

8.1 As regards ld.CIT(A)'s consideration that expenditure incurred was with relation to tenanted property, we find that the issue has been duly explained and clarified by insertion of explanation after clause ( c) of section 30. Hence, this plank of giving relief is also not sustainable.

9. In the result, this appeal filed by the revenue is allowed for statistical purposes.

Order pronounced in the open court on 27- 02-2015

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Sd/- Sd/- [ महावीर संह, यायीक सद य] [शामीम याहया, लेखा सद य] [ Mahavir Singh, Judicial Member] [ Shamim Yahya, Accountant Member तार ख/ Dated:27/02/2015 आदेश क त ल प अ े षत/Copy of the order forwarded to:

1. अपीलाथ /Appellant- The DCIT,Cir-8, Aaykar Bhawan, 5th Fl., P-7 Chowringhee Sq, Kol-69.

2 यथ / Respondent : M/s. Peerless Hotels Ltd 12 J L Nehru Road, Kol -13

3. आयकर क मशनर/ CIT,

4. आयकर क मशनर (अपील)/CIT(A),

5. वभा गय तनीधी/DR, Kolkata Benches, Kolkata

*PP/SPS [स या पत त/True Copy]

आदेशानुसार/ By order, पंजीकार/Asstt Registrar