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TMI Blog2019 (2) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 5 - SUPREME COURT] on the facts in this case there was no enduring benefit obtained by the assessee. It broke down when the Government of India cancelled the tender. We do not find any question of law arising, since the facts have been gone into by the Tribunal and held in favour of the assessee. - ITA.No. 1188 of 2009 - - - Dated:- 25-1-2019 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADV. SRI.JOSE JOSEPH, SC FOR INCOME TAX For The Respondent : ADVS. SMT.LATHA ANAND SRI.K.ANAND (SR.) AND S. SRIDHAR JUDGMENT Vinod Chandran, J. The question of law raised in the above appeal is re-framed as follows:- Whether in the facts and circumstances of the case, the preliminary e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. The mere fact that a consultant was engaged for submission of tender, was also found to be a pointer to the fact of the assessee venturing into a new line of business. Finding that the tender submission for the BOT project was not, in any manner, connected with the other existing businesses of the assessee, the Assessing Officer found that the expenditure can only be capital. 4. The learned Standing Counsel, Government of India (Revenue) would point out that the Tribunal erred insofar as setting aside the order of the Assessing Officer as confirmed by the first appellate authority. It is pointed out that all expenditure on the capital side need not create an asset and hence, non-creation of an asset would not be a consideration while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission of a tender for the Vaizag Port was not in the nature of venturing into a new line of business. 7. In Alembic Chemical Works Co. Ltd. (supra) a pharmaceutical Company had obtained technical know-how from abroad for increasing yield of penicillin in its existing plant, the know-how being utilised for expansion of the existing business. The Supreme Court found that there cannot be a single criterion determinative as to whether a particular outlay is capital or revenue. It was held; the expenditure being 'once for all' is inconclusive to find it as spend for capital and the test of 'enduring benefit' may break down in many instances. What is relevant is the purpose of the outlay and its intended object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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