2008 (1) TMI 261 - HC - Income Tax

Preliminary expenditure incurred for construction of a shopping complex cannot be anything other than a capital expenditure as it goes to add to the capital of the project - Obviously impugned expenditure is capital in nature & cannot be treated as revenue expenditure - rectification carried out u/s 154 of the Income-tax Act is perfectly justified - Tribunal rightly dismissed the assessee s appeal on the validity of rectification as well as against disentitlement for the claim

Summary

Issues:
- Disallowance of preliminary expenditure for construction of a shopping complex under the Income-tax Act, 1961.

Analysis:
1. The appellant, originally engaged in hosiery business, incurred preliminary expenditure for constructing a shopping complex. The expenditure included items like soil testing, fees for plan approval, and architect fees. Initially, the claim was allowed, but later rectified under section 154 as capital in nature.

2. The main issues raised were whether the rectification under section 154 was justified and whether the expenditure was rightly deemed capital in nature. The appellant argued citing the Empire Jute Co. Ltd. case that the expenditure did not result in enduring benefits. However, the standing counsel contended that the expenditure was capital, referring to decisions like Trade Wings Ltd. v. CIT and Saurashtra Cement and Chemical Industries Ltd. v. CIT.

3. The court analyzed the nature of the expenditure and observed that each item was specifically for setting up the shopping complex. Concrete steps were taken, indicating a clear intention to establish the complex. The project was abandoned due to financial constraints. Had it been completed, the expenditure would have added to the project's capital, entitling only to depreciation. The court concluded that the preliminary expenditure for the shopping complex was inherently capital in nature, not open to debate, justifying the rectification under section 154.

4. Consequently, the court upheld the Tribunal's decision, dismissing the appeal and ruling in favor of the Income-tax Department. The court found the rectification valid and the expenditure rightfully classified as capital, emphasizing that such preliminary expenditure for construction inherently adds to the capital of the project, precluding its treatment as revenue expenditure.