The Commissioner of Income Tax and The Joint Commissioner of Income Tax vs M/s. Indo Nissin Foods Ltd.

K. Sreedhar Rao, J.—The assessee incurred expenditure for television advertisement film production. The assessee claimed deduction of the said amount as revenue expenditure. The Assessing Officer in the previous year had allowed the deduction but for the assessment year 1998-99, disallowed the expenditure on the ground that the Commissioner has taken a view that the said expenditure amounts to enduring benefit and constitutes a capital expenditure. The Commissioner of Income Tax (Appeals) has confirmed the order. The Tribunal has set aside the order and allowed the deduction. The Revenue aggrieved by the said order has filed this appeal. Sri K.V. Aravind, learned Counsel for the Revenue relied upon the decision of the Supreme Court in Assam Bengal Cement Co. Ltd. Vs. The Commissioner of Income Tax, West Bengal, to contend that any expenditure which has the character of handing out enduring benefit would constitute a capital expenditure. The following substantial question of law is same for consideration which read thus:-

Whether the Tribunal was correct in holding that the expenditure incurred in TV advertisement of Rs. 2,10,801/- and in film production of Rs. 1,05,78,202/- are revenue in nature and not a capital expenditure as held by the Assessing Officer?

The test of enduring benefit enunciated by the Supreme Court in the above cited case as no application to the facts of the case in hand. The expenditure incurred is dominantly for advertisement to promote the sales. If the contention of the Revenue is upheld, any expenditure incurred for marketing and promoting sales should have to be held as ''capital expenditure'' and in no case, the deduction can be allowed. Such a contention is illogical and untenable. In the cited case, the compensation was paid during the whole period of lease as protection fees in consideration of which the lesser undertook not to grant any lease, permit or prospecting licence for limestone for the manufacture of cement, in a group of quarries. The said payment of protection fee was held to be a capital expenditure. In the instant case, the facts stand on a different footing. In that view, the substantial question of law is answered against the Revenue. Accordingly, the appeal is dismissed.