TMI Blog2020 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... be any dispute that the Act visualizes committing of mistakes apparent from record either by the assessee or by the assessing officer and hence the provisions of sec. 154 have been incorporated in the Act. The mistakes apparent from record can be either pointed out by the assessee or it can be noticed by the assessing officer himself. Accordingly he may pass the rectification order suo-motu or on the application filed by the assessee in order to rectify the said mistake apparent from record. The Act also prescribes a time limit of four years for rectifying such mistakes. In the instant case, the assessing officer has passed the rectification order within one week from the date of passing of final assessment order. Accordingly, we are of the view that there was inadvertent omission on the part of the AO in not complying with the directions issued by Ld DRP, which has been duly rectified by him by passing the rectification order u/s 154 - A.R submitted that the AO has only partially complied with the directions, i.e., he has not followed the direction in respect of addition relating to belated payment of PF/ESI. In our view, this omission should also be treated as mistake appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowance is liable to be made, then the AO should consider other arguments of the assessee also in the set aside proceedings. Disallowance of promotion and advertisement expenses - HELD THAT:- We notice the issue relating to allowability of expenditure incurred on sponsorship of sports event was considered by the Mumbai bench of ITAT in the case of Samudra Developers Pvt Ltd [ 2017 (4) TMI 1188 - ITAT MUMBAI] and it was held that the same is allowable as revenue expenditure. Expenditure incurred on sponsoring of sports events are intended to promote business only and hence the same is allowable as expenditure. The allowability of brand promotion expenses was examined by Hon'ble Delhi High Court in the case of Modi Revelon P Ltd [ 2012 (9) TMI 48 - DELHI HIGH COURT] consists merely in facilitating the assessee's business operations, enabling the management to conduct their Hotel business more efficiently and profitably. We are, therefore, satisfied that the view taken by the Tribunal in answering this question in favour of Assessee. Disallowance of PF/ESI payments for belated remittance - DRP directed the AO to delete the disallowance by following the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income filed by the assessee for the year under consideration was taken up for scrutiny. The AO referred the matter relating to determination of Arms Length Price (ALP) of international transactions to the Transfer Pricing Officer (TPO), who passed the order u/s 92CA of the Act on 29-01-2016 proposing Transfer pricing adjustment in respect of interest free loan given to group company. Thereafter, the AO passed a draft assessment order on 30-03-2016 (erroneously mentioned as 30-03-2015 in the draft order) u/s 143(3) r.w.s 144C(1) of the Act. The assessee objected to the draft assessment order by filing its objections before Ld DRP, which disposed of the objections of the assessee by its order dated 22.12.2016. Accordingly, the assessing officer passed the final assessment order u/s 143(3) r.w.s 144C(13) of the Act on 31.01.2017. 5. In the final assessment order, referred above, the AO did not make following adjustments/additions, which were directed to be made by the Ld DRP:- (A) Transfer Pricing matters:- 1. Adjustment for interest free loan to AE - ₹ 45,69,73,626/- (B) Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d beyond the time limit prescribed for passing the final assessment order and hence the same would not cure the illegality committed by the AO in passing the final assessment order. Accordingly he contended that the final assessment order passed by the AO should be quashed. In this regard, the ld A.R placed his reliance on the following case law:- (a) Software Paradigms Infotech P Ltd vs. ACIT (IT(TP)A No.150/Bang.2014) (b) July Systems Technologies P Ltd vs. DCIT (IT(TP)A No.479/Bang.2016) (c) Addl. CIT vs. Oracle India (P) Ltd (2018)(93 taxmann.com 8)(Delhi Trib.) 7. The Ld D.R, on the contrary, submitted that the AO has complied with the directions issued by Ld DRP by passing a rectification order u/s 154 of the Act in order to correct the inadvertent mistake committed in the final assessment order. 8. We heard the parties on this legal issue and perused the record. Admittedly, the AO has passed the final assessment order by replicating the draft assessment order, i.e., without complying with the directions issued by Ld DRP. However, the AO has passed a rectification order on 6th February, 2017 suo-motu complying with the directions issued by the Ld DRP in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating that the assessment order passed on 02-11-2012 be treated as draft assessment order. The said corrigendum was issued after the time limit prescribed for completion of assessment. Thereafter, the assessee filed objections before Ld DRP and upon receipt of directions, the AO passed the final assessment order on 30th October, 2013, i.e., much beyond the expiry of limitation period of 03-11-2012. Under these set of facts, the Delhi bench of Tribunal held that the procedure prescribed u/s 144C of the Act, having not followed, the assessment order is liable to be quashed. 12. We notice that the facts prevailing in the above said three cases are different from the facts prevailing in the instant case. The assessing officer, in the instant case, has passed the final assessment order u/s 143(3) r.w.s 144C(13) of the Act after the receipt of directions of Ld DRP. The very fact that the assessing officer has mentioned that the assessment order has been passed u/s 143(3) r.w.s 144C(13) of the Act would show that the AO has intended to comply with the directions issued by Ld DRP. However, the assessing officer has omitted to comply with the directions issued by Ld DRP. Hence the AO, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be any dispute that the Act visualizes committing of mistakes apparent from record either by the assessee or by the assessing officer and hence the provisions of sec. 154 of the Act have been incorporated in the Act. The mistakes apparent from record can be either pointed out by the assessee or it can be noticed by the assessing officer himself. Accordingly he may pass the rectification order suo-motu or on the application filed by the assessee in order to rectify the said mistake apparent from record. The Act also prescribes a time limit of four years for rectifying such mistakes. In the instant case, the assessing officer has passed the rectification order within one week from the date of passing of final assessment order. Accordingly, we are of the view that there was inadvertent omission on the part of the AO in not complying with the directions issued by Ld DRP, which has been duly rectified by him by passing the rectification order u/s 154 of the Act. The Ld A.R submitted that the AO has only partially complied with the directions, i.e., he has not followed the direction in respect of addition relating to belated payment of PF/ESI. In our view, this omission should a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its AE. The TPO adopted the Comparable Uncontrolled Price (CUP) method for benchmarking the loan transactions. For that purpose, the TPO took guidance from the rating given by CRISIL on corporate bonds, since the yield on the bonds would depend upon rating given by CRISIL. He noticed that the bonds are given ratings from AAA to D . The AAA denotes highest safety and D lowest rating, i.e. it denotes default on scheduled payments . Accordingly the interest yield will be lower for AAA rated companies in view of highest safety and the interest yield shall tend to increase on the basis of down grading of rating. The TPO noticed that the yield on BBB rated corporate bond was 12.06% for 5 years period. The TPO took the view that the risk is very high for the tax payer and its AE. Accordingly, he adopted yield rate of 14.47% and applied the same to the impugned loan transaction. Accordingly, he made Transfer pricing adjustment of ₹ 45.69 crores on the interest free loan given by the assessee to its AE. 17. The Ld DRP, following the decision rendered by Special bench of ITAT Kolkatta in the case of Instrumentarium Corporation Ltd Vs. ADIT (2016)(71 taxmann.com 193), confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. He submitted that Sec.92 provides for determination of arm s length price of the income arising from international transactions. He submitted that the assessee has given interest free loan to its AE and even if it is considered as an international transaction , yet no income has arisen to the assessee from out of the said loans, since there was no contractual right to receive interest on the said loans. In this regard, he placed his reliance on the decision rendered by Hon ble Bombay High Court in the case of India Finance Construction Co. (P) Ltd (1993)(200 ITR 710), wherein it was held that, when no income is received, there is no question of paying any tax on income which the respondents (department) think should have been received, but was in fact not received. Accordingly he submitted that, in the absence of any income from international transaction, no transfer pricing adjustment u/s 92(1) could be made. 20. The Ld A.R placed his reliance on the decision rendered by Hon'ble Bombay High Court in the case of Elphinstone Spg. Wvg. Mills Co. Ltd vs. CIT (1955)(28 ITR 811), wherein it was held that where the language is clear and not capable of any other const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of sec.92(1) shall not apply and hence no T.P adjustment could have been made. He submitted that the provisions of Chapter X have been held to be machinery provisions in the cases of Vodafone India Services (P) Ltd vs. UOI (2014)(368 ITR 1)(50 taxmann.com 300)(Bom) and Maruti Suzuki India Ltd vs. CIT (2015)(64 taxmann.com 150)(Delhi). The Ld A.R invited our attention to the following observations made by Hon'ble Bombay High Court in the case of Vodafone India Services (P) Ltd (supra) at paragraph 45 of its order:- Chapter X of the Act is a machinery provision to arrive at the ALP of a transaction between AEs. The substantive charging provisions are found in Sections 4, 5, 15 (Salaries), 22 (Income from house property), 28 (Profits and gains of business), 45 (Capital Gains) and 56 (Income from other sources). Even income arising from international transactions between AE must satisfy the test of income under the Act and must find its home in one of the above heads i.e., charging provisions. Accordingly, the Ld A.R submitted that the provisions of Chapter X cannot be given primacy over the charging sections. Under charging sections, the income should accrue to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed submission before TPO on 27th January, 2016, but the same was not considered by him. The assessee also submitted it before ld DRP also, but the same was not considered or dealt with by it also. 24. Without prejudice above said legal contentions, the ld A.R submitted that the TPO was not correct in adopting yield rate of Bonds holding CRISIL rating. He submitted that the Hon'ble Rajasthan High Court has held in the case of CIT vs. Vaibhav Gems Ltd (2017)(88 taxmann.com 12) that LIBOR rate should be applied. The SLP filed before the Hon'ble Supreme Court against the decision rendered by Hon'ble Rajasthan High Court in the above said case has been dismissed in SLP (Civil) No.30849/2018. 25. The Ld D.R, on the contrary, submitted that the advancement of interest free loans has been included under the definition of international transactions . He further submitted that the decision rendered by Special bench of ITAT in the case of Instrumentarium Corporation Ltd (supra) negates various contentions of the assessee. 26. We heard the parties on this issue and perused the record. Admitted fact is that the assessee has given interest free loans to its AE located in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission made by the Legislature. 28. There is no doubt that real income principle should be followed under the Income tax Act. However, under the Income tax Act, the tax is levied on total income . The expression total income is defined u/s 2(45) of the Act as under:- total income means the total amount of income referred to in section 5, computed in the manner laid down in this Act. Though section 5 defines Scope of total income , yet the total income has to be computed in the manner laid down in the Act. The term income is defined in sec. 2(24) in an inclusive manner. The said income, when computed in the manner laid down in the Act becomes total income . Hence there is difference between the expression income and total income . The Income tax Act contains certain legal fictions/deeming provisions like sec. 40A(3), 40(a)(ia) etc., The Ld A.R, during the course of arguments also pointed out that sec. 50CA, 50D, 45(4) contain deeming provisions. While computing total income, the real income is adjusted by including therein various legal fictions/deeming provisions incorporated in the Income tax Act. After this process only, the total income is arrived at. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds can be said to be for the purposes of business, and, accordingly, whether interest on borrowings for funds so used can be allowed as a deduction in computation of business income of the assessee. That is not the issue here, and these judicial precedents on the commercial expediency, therefore, have no relevance in computation of arm's length price of loan given to an associated enterprise. Similarly, learned counsel's contention that a notional income cannot be taxed, and reliance on Shoorji Vallabhdas Co.'s case (supra) in this regard, is wholly misplaced because that proposition is in the context of tax laws in general, whereas, transfer pricing provisions, being anti abuse provisions with the sanction of the statute, come into play in the specific situation of certain transactions with the associated enterprise. The general provisions of the law have to give way to these specific anti abuse provisions. While a notional interest income cannot indeed be brought to tax in general, the arm's length principle requires that income is computed, in certain situations, on the basis of certain assumptions which are inherently notional in nature. When the legal provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . case (supra) is thus irrelevant. In the case of Abhishek Auto Industries Ltd. (supra), what was done was that of the joint venture agreement, which was duly approved by the Reserve Bank of India and other regulatory bodies, was disregarded by questioning its need, and it was in this context that the Tribunal observed that legally binding joint venture arrangements cannot be disregarded by the revenue authorities. This observations, taken out of the context, cannot be interpreted to mean that an arm's length price of an interest free loan cannot be adopted for ascertaining income from loan transaction. 39. In our considered view, the assessee is not really correct in contending that when the assessee has not reported any income from a particular international transaction, the ALP adjustment cannot compute the same. The computation of income on the basis of arm's length price does not require that the assessee must report some income first, and only then it can be adjusted for the ALP. Section 92(1) is not an adjustment mechanism; it is a computation mechanism. The arm's length price principle requires that an arm's length price is assigned to the transactions be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term International transactions . If the loan is given at free of interest, the same should be construed as having been given at Zero interest . Hence the income relating to loan transactions with the AE is required to be tested under Arms length principles u/s 92(1) of the Act, even if no interest income is contemplated between the parties. It can be noticed that the Special bench has specifically addressed the case of charging of Zero interest or no interest and held that so long as the transactions fall under the category of international transactions , the arms length principle has to be applied. We may look at another instance also. The new definition of International transaction shall also include the purchase, sale, transfer, lease or use of tangible property including building, transportation vehicle, machinery, equipment, tools, plant, furniture, commodity or any other article, product or thing The purchase transaction is in the nature of expenditure and the same, per se, does not produce any income. Yet the purchase transaction is included under the definition of International transaction . The purpose of the same is explained hereafter. The product purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be taken as a case of Zero interest and accordingly the impugned loan transactions should also be examined under arms length principles. 31. We notice that the decisions rendered by the Mumbai bench of Tribunal in the case of Shilpa Shetty (supra) and M Suresh Company P Ltd (supra) did not consider binding decision rendered by the Special bench of ITAT, Kolkatta and hence the above said decisions so rendered by the Mumbai bench are per-incurium and cannot be followed. Various other decisions relied upon by Ld A.R are related to the computation of income under general provisions of the Act, whereas Chapter X is Special provision relating to Avoidance of Tax. As held by the Special bench, the general provisions have to give way to the special provisions. The Special bench has also observed that the decision rendered by Hon'ble Bombay High Court in the case of Vodafone India Services (P) Ltd (supra) has been rendered in a different context. So is the case with the decision rendered by Hon'ble Delhi High Court in the case of Maruti Suzuki Ltd (supra). 32. In view of the above, we hold that the tax authorities are justified in invoking the provisions of Chapter X to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived during the year was ₹ 8.98 crores. However, in the written submissions, the assessee has stated that it has received dividend income of ₹ 4.46 crores only. This difference requires to be examined. Be that as it may, the fact remains that the assessee did not disallow any expenditure u/s 14A of the Act, even though it claimed exemption of dividend income received from domestic companies and mutual fund. The AO, hence, computed disallowance by applying provisions of Rule 8D of I.T Rules at ₹ 94.97 crores. The Ld DRP directed the AO to exclude the dividend received from foreign subsidiaries, as they are taxable. Otherwise, in principle, it confirmed the disallowance made by the AO u/s 14A of the Act. 36. We heard the parties on this issue and perused the record. The Ld A.R made various contentions and hence this issue requires to be restored to the file of the AO for examining it afresh in the light of various contentions of Ld A.R, which are summarized below:- (a) It is the contention of Ld A.R that the own funds available with it is in excess of the investments. The jurisdictional Hon'ble Karnataka High Court in the case of CIT vs. Microlabs Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would be able to show the nexus between the interest expenditure and its utilisation for specific purposes, no interest disallowance is called for. In this regard, it is stated that it has paid interest on security deposits, cash credits/overdrafts, working capital demand loan, bill discounting facilities. When the disallowance is worked out under rule 8D(2)(ii), this contention of the assessee would loose its significance. (c) The Ld A.R submitted that, for the purpose of computing average value of investments, the AO should consider only those investments which have actually yielded exempt dividend income. We notice that this argument of the assessee finds support from the decision rendered by the Special bench in the case of Vireet Investments P Ltd (165 ITD 27)(Delhi- SB). Accordingly, we direct the AO to exclude investments, which did not yield exempt income, while computing average value of investments. (d) The Ld A.R also contended that the disallowance should not exceed the amount of exempt income. In this regard, he placed his reliance on the decision rendered by jurisdictional High Court in the case of Pragathi Krishna Gramin Bank vs. JCIT (2018)(95 taxmann.com 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the decision rendered by Hon'ble Punjab Haryana High Court in the case of Auluck and Sons P Ltd (supra) was rendered by following its earlier decision in the case of Abhishek Industries Ltd (supra). However, the decision rendered by Hon'ble Punjab and Haryana High Court in the case of Abhishek Industries Ltd (supra) has since been revered by the Hon'ble Supreme Court in the case of Munjal Sales Corporation (2008)(168 Taxman 43)(SC). 39. The ld A.R submitted that the assessee had advanced interest free funds to USL Holdings Ltd located in British Virgin Island, an associated enterprise for the purpose of acquiring W M Group and hence there was commercial expediency in giving the loan to USL Holdings Ltd. The above said W M group is major producer of Scotch, which is the ingredient used in production of alcoholic beverages by the assessee. Hence the acquisition of the above said group has actually promoted the business interests of the assessee. Accordingly he submitted that there is commercial expediency in giving interest free advances to its AE. The Hon'ble Supreme Court has held in the case of S.A Builders Ltd (2007)(158 Taxman 74) that no inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of disallowance is liable to be made, then the AO should consider other arguments of the assessee also in the set aside proceedings. 43. The next issue relates to the disallowance of promotion and advertisement expenses. The assessee had claimed following payments as Advertisement and sales promotion expenses:- a. Royal Challengers Sports P Ltd - 9.00 crores b. United Racing Bloodstock breeders - 7.72 crores c. United Mohun Bagan Football Team - 8.55 crores 25.27 crores d. Force India F1 Team Ltd. - 7.39 crores 32.66 crores The AO took the view that these expenses have been incurred for promotion of USL brand and hence they give enduring benefit to the assessee. Accordingly he held that these expenses are in the nature of brand promotion and the same give rise to an intangible asset. Hence these expenses are in the nature of capital expenditure. Accordingly he disallowed the above said claim of the assessee. Ld DRP also confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a platform to advertise. 45. We have heard Ld D.R on this issue and perused the record. We notice the issue relating to allowability of expenditure incurred on sponsorship of sports event was considered by the Mumbai bench of ITAT in the case of Samudra Developers Pvt Ltd (ITA 5974/Mum/2013 dated 26-04- 2017) and it was held that the same is allowable as revenue expenditure. For the sake of convenience, we extract below the operative portion of the order passed by Mumbai bench of Tribunal on an identical issue:- 3.Second ground of appeal pertains to deleting the disallowance on account of sponsorship fees and management fees.In the earlier part of our order,we have mentioned the facts about the various disallowances made by the AO including the capitalisation of sponsorship.Treating it as an intangible asset,he allowed depreciation on it @25%. 3.1. The FAA after considering the elaborate submissions of the assessee,held that it had entered into an agreement with the sports company namely India-Win in the month of March, 2010,that the assessee-group became cosponsor of Mumbai Indian IPL cricket team as an associate partner, that as per the agreement the ground logo of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such events publicise the names of the sponsor. The AO was not justified in capitalising the expenses. The entire expenditure was rightly allowed by the FAA as revenue expenditure. After going through the details of expenditure incurred by assessee under the head managerial expenses, we are of the opinion that it had not got any enduring benefit from the expenditure incurred nor did the expenditure create any capital asset.Therefore, we do not want to interfere with the order of the FAA.Considering the above,we decide second ground of appeal against the AO. 46. The Delhi bench of Tribunal has also examined an identical claim in the case of M/s Pepsico India Holdings Pvt Ltd (supra) and the same was allowed as revenue expenditure with the following observations:- Re: Disallowance of INR 3,85,15,497/- being sponsorship fees paid to ICC 87. In Grounds No. 7 to 7.3 in I.T.A. No. 1044/DEL/2014 for AY 2009- 10, the assessee has challenged the disallowance of INR 3,85,15,497/- being sponsorship fees paid by the assessee to ICC. Our attention was drawn to paras 4 to 4.3 of the final assessment order wherein the said issue has been discussed by the AO. It has been submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be a bar for allowance of expenditure under section 37 of the Act, as per the settled position of law. Reference in this regard was made to the decisions of the Hon'ble Supreme Court of India in CIT vs. Chandulal Keshavlal Co. [1960] 38 ITR 601 (SC), Sasson J. David and Co. P. Ltd vs. CIT 118 ITR 261(SC) and SA Builders Ltd. vs. CIT 288 ITR 1(SC. He further submitted that the Revenue cannot step into the shoes of an assessee to determine the commercial expediency of an expenditure incurred by it. 90. On the other hand, the learned DR relied upon the order of the AO and the DRP in support of his contentions. 91. After considering the rival submissions and on perusal of the impugned orders, we find that, here the disallowance of ₹ 3,85,15,497/- has been made on account of sponsorship fee by the assessee to the ICC on the ground that similar expenditure was disallowed in the earlier years as part of Transfer Pricing Adjustment on account of AMP expenses; and secondly, assessee has been bearing substantial portion of the fees to the ICC for acquiring the sponsorship rights even though benefit of the same is derived by either entity of the world. The contention raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actured by the sister concern. On this aspect, Section 37 of the Income-tax Act would be relevant. The said provision reads as follows: SECTION 37 GENERAL: (1) Any expenditure (not being expenditure of the nature described in sections 30 to 36 and not being in the nature of capital expenditure or personal expenses of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head Profits and gains of business or profession . Explanation : For the removal of doubts, it is hereby declared that any expenditure incurred by an assessee for any purpose which is an offence or which is prohibited by law shall not be deemed to have been incurred for the purpose of business or profession and no deduction or allowance shall be made in respect of such expenditure. (2B) Notwithstanding anything contained in sub-section (1), no allowance shall be made in respect of expenditure incurred by an assessee on advertisement in any souvenir, brochure, tract, pamphlet or the like published by a political party. The applicable test as to what constitutes expenses laid out or expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of given products or services, and are often perceived as conferring a competitive advantage on those who adopt those strategies or schemes. Expenditure towards that end is based on pure commercial expediency, which the revenue in this case, ought to have recognised, and allowed. The revenue's arguments on this point too are insubstantial. 48. The observations made by the Hon ble jurisdictional Karnataka High Court in the case of CIT vs. ITC Hotels (2014)(47 taxmann.com 215) on the concept of enduring benefit is relevant here and the same is extracted below:- 6. The first substantial question of law relates to a sum of ₹ 10 lakhs, which were paid by the assessee as a license fee for the use of central court yard, having marble, (for short Court Yard ) in Lallgarh Palace (for short 'Palace'). It appears that there was a Memorandum of Understanding (for short 'MOU') between the Assessee and Maharaja Ganga Sinhji Charitable Trust (for short the trust ). The assessee, as per the MOU, had acquired a right to use the court yard for their business of hotel, being run in the palace, more efficiently and profitably. The question is whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite condition) for treating such an expenditure as properly attributable not to revenue but to capital . This test, as the parenthetical clause shows, must yield where there are special circumstances leading to a contrary conclusion and, as pointed out by Lord Radcliffe in CIT v. Nchanga Consolidated Copper Mines Ltd. [1965] 58 ITR 241 (PC) : TC16R.991, it would be misleading to suppose that in all cases, securing a benefit for the business would be, prima facie, capital expenditure so long as the benefit is not so transitory as to have no endurance at all. There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, none the less, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an ..... 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