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TMI Blog2023 (3) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.201/Coch/2015 - - - Dated:- 13-9-2022 - SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER For the Appellant : Smt. J.M. Jamuna Devi, Sr. DR For the Respondent : Shri V.M. Veeramani, A.R. ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER: This appeal by revenue is directed against order of CIT(A) dated 27.1.2015. The revenue has raised following constructive grounds:- 1. The Order of the CIT(A-II), Kochi in appeal No.ITA No.97/R- 4/CIT(A)-II/2013-14 dated 12.1.2015 is opposed to law, weight of evidence, facts and circumstances of the case. 2. Whether on facts and circumstances of the case, the CIT(A) was right in deleting the addition of Rs.18,74,048/- made by the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diture on fee paid to Registrar of Companies. The appeal is filed against the above disallowances. 3. On appeal Ld. CIT(A) observed that the disallowance made by the Assessing Officer is based on the premise that the structures are permanent in nature and they will be used for the business so long the assessee is engaged in this business. The huge expenditure on construction of this structure also indicates that these are constructed of concrete etc. therefore; they cannot be temporary in nature. The Assessing Officer has raised the question that whether a structure created for limited period, as argued by the assessee, can be treated as a temporary structure. The Assessing Officer has also pondered over the issue that since the period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the exempted category of same circular. Hence, order of the Tribunal has been recalled and posted for fresh hearing. Accordingly, this appeal came for hearing today before this Tribunal. 5. We have heard both the parties and perused the materials available on record. After hearing both the parties, we are of the opinion that the impugned issue has been considered by the larger Bench of jurisdictional High Court of Kerala in the case of Indus Motors Company Pvt. Ltd. Vs. Deputy Commissioner of Income-tax reported in 382 ITR 503 (Ker.), wherein it was observed as follows:- Whether an expenditure incurred by the assessee in a particular case is capital expenditure or revenue expenditure has to be decided on the facts of that case ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r revenue expenditure was to be found out from the facts of each case and by applying The relevant tests in each case and when it was found that the nature of such expenditure was capital expenditure, Explanation 1 would automatically come into operation. It could not be said that the ratio laid down in JOY ALUKKAS' case was not in accordance with the ambit and scope of Explanation 1 to section 32 . The ratio expressed therein at paragraph 28 laid down the correct law and needed no reconsideration. The observations and opinion expressed at paragraphs 29 and 30 of JOY ALUKKAS' case for holding that the expenditure incurred by the assessee was not a capital expenditure but revenue expenditure were observations based on the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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