Holding

The payment was for improvement of the existing business and is revenue expenditure deductible under Section 37.

Summary

Alembic Chemical Works Ltd., a penicillin manufacturer, paid Rs 2,39,625 to Japanese firm Meiji for sub‑cultures, technical know‑how, designs and training to improve yields in its existing plant. The assessee claimed the payment as a revenue expense deductible under Section 37 of the Income‑Tax Act, 1961. The tax authorities and the Income‑Tax Appellate Tribunal treated it as a capital outlay, applying the ‘once‑for‑all’ and ‘enduring benefit’ tests, and disallowed the deduction. The Gujarat High Court upheld the disallowance. The Supreme Court held that the outlay was for the better conduct and improvement of the existing business, not for acquiring a new plant or a capital asset, and therefore qualified as revenue expenditure. Consequently, the appeal was allowed and the earlier orders set aside.

Issues considered

The payment to Meiji is a revenue expenditure deductible under Section 37 or a capital outlay not deductible.
Whether the agreement resulted in a completely new plant/process constituting a capital asset.
Whether the ‘once‑for‑all’ payment and ‘enduring benefit’ tests are determinative for classifying the expenditure.

Legislation cited

Income Tax Act, 1961s. 256(1), s. 256(2), s. 37

Subjects

Income taxSection 37capital vs revenue expendituretechnical know‑howonce for all paymentenduring benefitpenicillin productiontax deduction

Judgment

ALEMBIC CHEMICAL WORKS CO. LID.
A
v.
COMMISSIONER OF INCOME TAX, GUJARAT

MARCH 31, 1989

B [R.S. PATHAK, 0 AND M.N. VENKATACHALIAH, JJ.j

Income Tax Act, 1961: Section 37-Tests to determine whether -~
Capital or Revenue Expenditure--' Once for all' and 'enduring benefit'
tests-Not conclusive--Object and effect of the expenditure to be looked
into--'Once for all payment' made by manufacturer to a foreign com-
e pany for supply of technical know-how etc. for increasing production
improvisation in the process and technology supplemental to existing . I
business-No new venture--Whether the payment made is a revenue ~
expenditure qualifying for deduction.

The appellant-assessee, a company engaged in the manufacture
D of penicillin, in order to increase its production, entered into'!" agree·
ment with a Japanese firm (Meiji) for supply of sub-cultures of penicil·
Jin producing strains, technical know-bow, training, written descrip·
tion of the process on a pilot plant, design and specifications of the main
equipment in such pilot plant, and to advise the assessee In the large· ~
scale manufacture of penicillin for a limited.period of two years.
E
As per the agreement, the assessee paid Rs.2,39,625 to Meiji and
claimed the same as revenue expenditure In its Income tax assessment
for the assessment year 1964-65. Disallowing the claim the Income Tax
Officer held that the expenditure was for the acquisition of an asset or
advantage of an enduring benefit and thus a capital outlay. The Appel·
F late Assistant Commissioner confirmed the order of the Income Tax
Officer.

The further appeal of the assessee was dismissed by the Income
Tax Appellate Tribunal holding that the payment made to Meiji was
'once for all payment' made for the acquisition of a capital asset.
G
At the instance of the assessee, the Tribunal referred to the High t
Court, the question as to whether the sum paid to Meiji was a revenue
expenditure. The High Court answered the question in the negative.
The present appeal is against that order of the High Court.

H The assessee also moved an application before the High Court
302
ALEMBIC CHEMICAL v. C.l.T. 303

~ seeking a direction to the Tribunal to refer another question of law as to
whether a new plant was obtained or installed by the assesKe conse- A
quent upon the agreement. Declining to interfere, the High Court ob·
served that the Tribunal has not recorded a finding lo the effect that a
completely new plant was obtained by the assessee and the Tribunal's
decision that the assessee, had obtained a new process and a new techni·

~ cal know-how from Meiji was not without evidence. B

~. Against the above order of the High Court, the assesKe preferred
an appeal lo this Court, which was formally disposed of with a direction
to the Tribunal lo draw up a supplementary statement of the case and
refer for the opinion of this Court, the further question of law as sought
for by the assessee; and such a question lo be considered in the present
appeal. c
~~
,
On behalf of the assessee, it was submitted that the Tribunal was
influenced by an erroneons assumption that the agreement envisaged
the setting up of a new plant, whereas the objective of the agreement
was only to increase the yield of penicillin in the existing plant itself. D

The Revenue contended that there was a new venture based on a
new technology and kriow-how of unlimited duration which required a
,~
new plant for its commercial exploration.

Allowing the appeal, E

• HELD: 1. The financial outlay under the agreement was for the
better conduct and improvement of the existing business ·and should,
therefore, be held to be a revenue expenditure. There is also no single
~J.. definitive criterion which, by itself, is determinative whether a partlcu·
lar outlay is capital or revenue. The 'once for all' paymenl test is also F
inconclusive. Whal is relevant is the purpose of the outlay and its in-
tended object and effect, considered in a common-sense way having
)-
regard to the business realities. The rapid strides in science and technol·
• ogy in the field should make this Court a little slow and circumspect in
· too readily pigeon-holing an outlay, such as this, as capital. The
circumstance that the agreement in so far as it placed limitations on the G
-~
right of the assessee in dealing with the know-how and the conditions as
to non-partibility, confidentiality and secrecy of the know-how incline
towards the inference that the right pertained more to the use of the
know-how than lo its exclusive acquisition. [319A, B-C; 3170-El

CIT v. CIBA of India Ltd., [1968) 2 SCR 696; CIT, Bombay v. H
304 SUPREME COURT REPORTS [19891 2 S.C.R.

A Associated Cement Co. Ltd., JT 282 (2) 287, relied on.

2. The idea of 'once for all' payment and 'enduring benefit' are
not to he treated as something akin to statutory conditions; nor are the
notions of "capital" or "revenue" a judicial fetish. What is capital
expenditure and what is revenue are not eternal verities but must needs
B be flexible so as to respond to the changing economic realities of busi-
ness. The expression "asset or advantage of an enduring nature" was ~
evolved to emphasise the e1ement of a sufficient degree of durability }_
appropriate to the context. 13 J3C 1

Herring v. Federal Commissioner of Taxation, 119461 72 CLR
C 543, referred to.

3. In computing tbe income chargeable under tbe head "Profits
and Gains of Business or Profession", section 37 of the Income-tax Act
enables the deduction of any expenditure laid-out or expended wholly
and exclusively for the purpose of the business or profession, as the case
D may he. The fact that an item of expenditure is wholly and exclusively
laid-out for purposes of the business, by itself, is not sufficient to entitle
its allowance in computing the income chargeable to tax. In addition,
the expenditure should not be in the nature of a capital-expenditure. In
the infinite variety of situational diversities in which the concept of what
is capital expenditure and what is revenue arises it is well nigh impossi-
E ble to formulate any general rule, even in generality of cases sufficiently
accurate and reasonably comprehensive, to draw any clear line of
demarcation. However, some broad and general tests /
have been
suggested from time to time to ascertain on which side of the line the
out-lay in any particular case might reasonably be held to fall. These
tests are generally efficacious and serve as useful servants; but
p as masters they tend to be over-exacting. The question in each case
would necessarily be whether the tests relevant and significant in one
set of circumstances are relevant and significant in the case on hand
also. l3JOC-F; 312GI

City of London Contract Corporation v. Styles, 11887] 2 TC 239;
G Vallambrosa Rubber Co. v. Farmer, 11910] 5 TC 529; British Insulated
Helsby Cables Ltd. v. Atherton, 11926] AC 205; Assam Bengal Cement r-
Co. Ltd. v. Commissioner of Income-tax, 11955] 27 ITR 34; Sitaipur
Sugar Works Ltd. v. Commissioner of Income-tax, ll96J l 49 ITR (SC)
160; Lakshmiji Sugar Mills Co. Ltd. v. Commissioner of Income-tax,
[19711 82 ITR 376 (SC); Travancore-Cochin Chemicals Ltd. v. Com-
H missioner of Income-tax, 119771106 ITR 900 (SC); Sun News Papers
ALEMBIC CHEMICAL v. C.l.T. 305

Ltd. & Associated News Papers Ltd. v. Federal Commissioner of Taxa-
tion, [1938) (61) CLR 337; Regent Oil Co. Ltd. v. Strick, [1966) AC 295 A
and B.P. Australia v. Commr. of Taxation of the Commonwealth of
Australia, 11966 l AC 224; referred to. \

4. The improvisation in the process and technology in some areas
I' of the enterprise was supplemental to the existing business and there B
), was no material to hold that it amounted to a new or fresh venture. The
further circumstance that the agreement pertained to a product already
in the line of assessee's established business and not to a new product
indicates that what was stipulated was an improvement in the operation
of the existing business and its efficiency and profitability not removed
from the area of the day-to-day business of the assessee's established
enterprise. [3 ISG-H) C

/ S. There was no material for the Tribunal to record the finding
that the assessee had obtained under the agreement a 'completely new
plant' with a completely new process and a completely new technical
know-how from Meiji. Indeed, the High Court recognised the fallacy in D
this assumption of the Tribunal that a completely new plant was
obtained by the assessee, though, however, the High Court attributed
the inaccuracy to what it considered to be some inadvertence or mis-
~. apprehension on the part of the Tribunal in that regard. But the High
Court was inclined to the view that a completely new process and
technical know-how was obtained from Meiji under the agreement. E
Certain assumptions fundamental to, and underlying, the approach of
the High Court are that the agreement envisaged a new process and a
new technolo~y so alien to the extent infra-structure, equipment, plant
and machinery in the assessee's enterprise as to amount to an entirely
new venture unconnected with and different from the line of assessee's
extant business. It is in that sense that the expense was held not F
incurred for the purposes of the day-to-day business of the assessee but
for acquiring a new capital asset. But mere improvement in or updating
of the fermentation-process would not necessarily be inconsistent with
the relevance and continuing utility of the existing infra-structure,
machinery and plant of the assessee. [31SA-D; 317B]
G
The New Encyclopaedia Britannica, Micropaedia, Vol. II; Ency-
clopedia of Chemical Technology, Kirk Othmen, 3rd Edn. Vol. 2,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.
43(NT) of 1975. H

l
306 SUPREME COURT REPORTS [1"891 2 S.C.R.

A From the Judgment and Order dated 23.1.1974 of the Gujarat
High Court in Income Tax Reference No. 78 oi 1970.

/ T.A. Ramachandran, Mrs. J. Ramachandran and S.C. Patel for
the Appellant.

B C.M 1 Lodha, M.N. Tandon and Ms. A.S. Subhashini, for the ~
Respondent. _,k
The Judgment of the Court was delivered by

VENKATACHALIAH, J. This appeal by the assessee, The
Alembic Chemicals Works Co. Ltd., arises out of and are directed
C against the judgment dated 23.1.1974, of the High Court of Gujarat in 1
Income Tax Reference 78 of 1970, answering in favour of the Revenue
a question of law referred to it under Section 256( 1) of the Income Tax
Act, 1961, (Act) by the Income Tax Appellate Tribunal.

D 2. On 8.6.1961, the assessee, a company engaged in the manu-
facture of antibiotics and pharmaceuticals was granted licence for the
manufacture, on its plant, of the well-known antibiotic, penicillin. In
the initial years of its venture the assessee was able to achieve only
moderate yields from the pencillin-producing strains used by it which , -+.
yielded only about 5000 units of penicillin per millilitre of the culture-
E medium.

In the year 1963, with a vie"! to increasing the yield of penicillin,
the assessee negotiated with M/s. Meiji Seika Kaishna Limited
-
("Meiji" for short), a reputed enterprise engaged in the manufacture
of antibiotics in Japan, which agreed to supply to the assessee the
F requisite technical. know-how so as to achieve substantially higher
levels of performance of production-of more than 10,000 units of
penicillin per millilitre of 'cultured-broth'-with the aid of better
technology and process of fermentation and with better yielding
penicillin-strains developed by Meiji. The negotiations culminated in
an agreement dated 9.10.1963, whereunder Meiji, in consideration of
p the 'once for all' payment of 50,000 U.S. dollars (then equivalent to
Rs .2 ,39 ,625) agreed to supply to the assessee the "sub-cultures of the
Meiji's most suitable penicillin producing strains", the technicaiinfor-
mation, know-now and written-description of Meiji's process for fermen-
tation of penicillin alongwith a flow-sheet of the process on a pilot
plant; the design and specifications of the main equipments in such
H pilot-plant; arrange for the visits to and training at assessee's expense,
ALEMBIC CHEMICAL v. C.l.T. (VENKATACHALIAH, J.J 307

of technical representatives of the assessee to Meiji's plant at Japan
A
and to advise the assessee in the large scale manufacture of penicillin
for a period limited to 2 years from the effective date of the agree-
ment. It was also stipulated that the technical know-how supplied by
Meiji was to be kept confidential and secret by the assessee which was
prohibited from parting with the technical know-how in favour of
others or to seek any patent for the process. B

3. In the proceedings for assessment to Income-tax for the
assessment-year 1964-65 the assessee claimed that Rs.2,39,625 paid
under the agreement to 'Meiji' was one laid out wholly and exclusively
for the purpose of the business and claimed its deduction as a revenue
expenditure. The Income-tax Officer, on the view that the expenditure
was for the acquisition of an asset or advantage of an enduring benefit,
c·
held it to be a capital outlay and declined the deduction. This view was
affirmed by the Appellate Asst. Commissioner in the assessee's first
appeal.

The Income-tax Appellate Tribunal, Ahmedabad Bench, dismis- D
sed the further appeal of the assessee holding that the arrangements
with Meiji envisaged the setting-up of a large commercial plant for the
production of the antibiotic modelled on the lines of the pilot-plant
and that, therefore, the out-lay could not be treated as an expenditure
laid-out on and for purposes of the existing business, but must be
regarded as one incurred for a new venture on a new process with a E
new technology on a new type of plant. The Tribunal held that the
-· payment was 'once for all payment' and was made for the acql!isition
of a capital asset. The Tribunal inter-alia held:

"The sub-cultures and the information design and
flow sheet etc., were to be furnished once for all. Meiji F
also agreed to advise the assessee in respect of any diffi-
culty the assessee may encounter in applying the sub-
cultures and informations obtained by the assessee froµi
Meiji to the large scale manufacture of penicillin. It is
apparent from the agreement and the correspondence
which has been made available to us that Meiji agreed to G
give the designs etc., not only for a pilot plant but for the
manufacture of penicillin according to Meiji's process on
commercial scale. The assessee has to put in a larger plant
modelled on the pilot plant."

" ......... It is in consideration for Meiji's agreeing tO H
308 SUPREME COURT REPORTS 11989] 2 S.C.R.

supply the assessee with complete details of the technical
A
know-how, the design, subcultures, flow sheet and written
descriptions of the process once for all that the assessee
paid to Meiji the stipulated sum of$ 50,000."

" ......... It would thus appear that the payment
B was made for acquiring a capital asset in the shape of tech-
nical know-how and other allied information. It was not j
mode in the course of carrying out of lln existing business of
the ossessee but was for the purpose of setting up a new plant
and a new process. It would, therefore, appear that the
revenue authorities have rightly treated the payment as of
capital nature."
c
" . . . . . The process which the assessee took over
from Meiji was not the same as it was working heretofore.
In the present case the outlay WllS incurred for a complete
replacement of the equipment of the business inasmuch as a
D new process with a new type of plant was to be put up in
place of old process and old plant .................. .
"
(Underlining Supplied)

4. At the instance of the assessee the Tribunal statec;I a case and
E referred the following question of law for the opinion of the High
Court:

"Whether the sum of Rs.2,39,6;?5 was a revenue
e>;penditure admissible to the assessee for the purpose of
computation of its total income?"
p
The High Court by the judgment under appeal answered the
question in the negative and against the assessee. This part of the ~
judgment is assailed by the assessee in CA 43 of 1975.

5. The reasoning of the High Court in support of its conclusion
G was on the following lines: 'r'
' .... It is true that the e1Cpenditure was manifestly laid out
for the purpose of obtaining benefits and advantages such
as sub-cultures of penicillin producing strains, design of a
pilot and exchange of technical personnel with a view to
H acquiring know-how. But the finding of th~ Tribunal, as we
ALEMBIC CHEMICAL v. C.l.T. (VENKATACHALIAH, J.] 309

read it, is that all the benefits which assessee received under
A
the agreement were as a part of the transaction which was
undertaken with the ultimate view of a setting-up a new plant
and a new process. In view of the findings recorded by the
Tribunal, no conclusion other than that the expenditure
was incurred once and for all with a view to bringing into
existence an asset or advantage for the enduring benefit of B
the manufacturing trade of the assessee is possible. The
expenditure was incurred for introducing a new process of
manufacturing and with a view to installing a new plant,
even if not immediately then at a later stage, and on that
conclusion the only possible answer to the first question
referred to us can be in the negative and against the
assessee."
c
(Emphasis Supplied)

Before the High Court, the assessee also moved an application
under Section 256(2) of the Act-ITA No. 24 of 1971-for a direction
to the Tribunal to refer another question of law, also stated to arise out D
of the order of the Tribunal. The question of law respecting which the
supplementary reference was sought was this:

"Whether there was any evidence or material before
the Tribunal to hold that (1) a completely new plant with a
completely new process and new technical know-how was E

- obtained by the assessee from Messrs Meiji under the said
agreement, dated 9.10.1963; and (2) to work out that pro-
cess separate plant or machinery had to be designed, con-
structed, installed and operated?

The High Court dismissed this application observing that the Tribunal F
had no where recorded a finding to the effect that a completely new
plant was obtained by the assessee from Meiji and that the finding of
the Tribunal that under the agreement the assessee had obtained a new
process and a new technical know-now from Meiji was not without
evidence. Against the dismissal of ITA 24 of 1971 by the High Court,
the assessee has preferred Civil Appeal No. 44 of 1975. G

6. On 24.2.1987, this Court while directing the Tribunal to draw
up a supplementary statement of the case and refer for the opinion of
this Court the further question of law which, according to the assessee,
arose out of the Tribunal's order and which was the subject-matter of
the assessee's appeal in C.A. 44 of 1975, however, disposed of that H
310 SUPREME COURT REPORTS [1989] 2 S.C.R.

A appeal formally, leaving the question of Jaw arising out of the supple-
mental reference to be considered in the present appeal i.e. CA No. 43
of 1975. The Tribunal has since submitted the supplementary state-
ment of the case and has referred that question of law also. This is how
both the questions of law, are now before us. While in regard to the
first question the correctness of the opinion rendered by the High
l3 Court requires to be examined, the second question has to be ans-
wered for the first-time as the reference is called by this court directly.

7. We have heard Shri T.A. Ramachandran, learned Senior
Counsel for the assessee and Shri Lodha, learned senior counsel for
the revenue.
c In computing the income chargeable under the head "Profits and
Gains of Business or Profession", section 37 of the 'Act' enables the ~·
deduction of any expenditure laid-out or expended wholly and exclu-
sively for the purpose of the business or profession, as the case may be.
The fact that an item of expenditure is wholly and exclusively laid-out
D for purposes of the business, by itself, is not sufficient to entitle its
allowance in computing the income chargeable to tax. In addition, the
expenditure should not be in the nature of a capital-expenditure. In
the infinite variety of situational diversities in which the concept of
what is capital expenditure and what is revenue arises it is well nigh
impossible to formulate any general-rule, even in generality of cases
E sufficiently accurate and reasonably comprehensive, to draw any clear
line of demarcation. However, some broad and general tests have
been suggested from time to time to ascertain on which side of the line
the out-lay in any particular case might reasonably be held to fall.
These tests are generally efficacious and serve as useful servants; but
as masters they tend to be over-exacting.
F
One of the early pronouncements which serves to indicate a
broad area of distinction is City of London Contract Corporation v.
Styles, (1887] 2 T.C. 239 where Bowen, L.J. indicated that the out-lay
on the "acquisition of the concern" would be capital while an outlay in
"carrying-on the concern" is revenue. In Vallambrosa Rubber Co. v.
G Farmer, [1910] 5 TC 529 Lord Dunedin suggested as 'not a bad crite-
rion' the test that if the expenditure is 'once for all' it is capital and if it
is 'going to recur every year'it is revenue. In the oft quoted case on the
subject, viz, British Insulated Helsby Cables Ltd. v. Atherton, [1926]
AC 205 Viscount Cave L.C. said:

H "But when an expenditure is made, not only once and for
ALEMBIC CHEMICAL v. C.I.T. [VENKATACHALIAH, J.] 311

all, but with a view to bringing into existence an asset or an A
advantage for the enduring benefit of trade, I think that
there is very good reason (in the absence of special circum-
stances leading to an opposite conclusion) for treating such
an expenditure as properly attributable not to revenue but
to capital."
B
8. In Assam Bengal Cement Co. Ltd. v. Commissioner of
:~ Income-tax, 11955] 27 ITR 34, this Court observed:

"If the expenditure is made for acquiring or bringing into
existence an asset or advantage for the enduring benefit of
the business it is properly attributable to capitaf and is of C
the nature of capital expenditure. If on the other hand it is
made not for the purpose of bringing into existence any
such asset or advantage but for running the business or
working it with a view to produce the profits, it is a revenue
expenditure."
D
"The aim and object of the expenditure would
determine the character of the expenditure whether it is a
capital expenditure or a revenue expenditure."

In Sitalpur Sugar Works Ltd. v. Commissioner of Income-tax,
[1963] 49 ITR (SC) 160; Lakshmiji Sugar Mills Co. Ltd. v. Commis- E
sioner of Income-tax, I1971] 82 ITR 376 (SC) and in Travancore-
Cochin Chemicals Ltd. v. Commissioner of Income-tax, [1977] 106 ITR
900 (SC) the enunciation made in Assam Bengal Cement Company's
case [1955127 ITR 34, which in tum, referred with approval to Lord
Cave's dictum was affirmed.
F
In Sun News Papers Ltd. & Associated News Papers Ltd. v.
Federal Commissioner of Taxation, ]1938] 61 CLR 337 Dixon J while
indicating that the distinction between revenue and capital corres-
ponds with the distinction between the "business entity, structure or
organisation set up or established for the earning of profit" on the one
hand and "the process by which such an organization operates to ob- G
tain regular returns" on the other, however, went on to say that:

"The business structure or entity or organization may
assume any of an almost infinite variety of shapes and it
may be difficult to comprehend under one description all
the forms in which it may be manifested .... " H
312 SUPREME COURT REPORTS [1989] 2 S.C.R.

The learned judge further observed:
A
" ..... There are, I think, three matters to be considered,
(a) the character of the advantage sought, and in this its
lasting qualities may play a part, (b) the manner in which it
is to be used, relied upon or enjoyed, and in this and under
B the former head recurrence may play its part and (c) the
means adopted to obtain it; that is, by providing a periodi- \ . ~
cal reward or outlay to cover its use or enjoyment for ~.
periods commensurate with the payment or by making a '
final provision or payment so as to secure future use or
enjoyment ..... "
c 9. In Regent Oil Co. Ltd. v. Strick, [1966] AC 295 Lord Reid
emphasised the futility of a strict application of and exclusive depend-
ence on any single principle in the search for the true-position and
pointed out the difficulty arising from taking too literally the general
statements made in earlier cases and seeking to apply them to a diffe-
D rent case which their authors certainly did not have in mind. The
Learned Lord also identified as another source of difficulty the
tendency in some cases to treat some one criterion as paramount and
to press it to its logical conclusion without proper regard to the other
factors in the case. Lord Reid further said:

E "So it is not surprising that no one test or principle or rule
of thumb is paramount. The question is ultimately a ques-
tion of law for the court, but is a question which must be
answered in the light of all the circumstances which it is
reasonable to take into account, and the weight which must
be given to a particular circumstance in a particular case
F must depend rather on common sense than on strict appli-
cation of any single legal principle."

The question in each case would necessarily be whether the tests
relevant and singificant in one set of circumstances are relevant and
significant in the case on hand also. Judicial metaphors, it is truly said,
G are narrowly to be watched, for, starting as devices to liberate thought
they end often by enslaving it. The non-determinative quality, by it-
self, of any particular test is highlighted in B.P. Australia v. Commr. of
Taxation of the Commonwealth of Australia, 11966] AC 224. Lord
Pearce said:

H "The solution to the problem is not to be found by
ALEMBIC CHEMICAL v. C.I.T. (VENKATACHALIAH, J.] 313

any rigid test or description. It has to be derived from many
aspects of the whole set of circumstances some of which A
may point in one direction, some in the other. One consid-
eration may point so clearly that it dominates other and
vaguer indications in the contrary direction. It is a common
sense appreciation of all the guiding features which must
provide the ultimate answer .... " B
I
(Emphasis Supplied)
~
The idea of 'once for all' payment and 'enduring benefit' are not
to be treated as something akin to statutory conditions; nor are the
notions of "capital" or "revenue" a judical fetish. What is capital
expenditure and what is revenue are not eternal varities but must
needs be flexible so as to respond to the changing economic realities of c
business. The expression "asset or advantage of an enduring nature"
was evolved to emphasise the element of a sufficient degree of durabi-
lity appropriate to the context. The words of Rich J. in Herring v.
Federal Commissioner of Taxation, 1946. 72 CLR 543, dealing with an
analogous provision in sec. 51 of Income-tax Assessment Act of D
Australia may be recalled.

" ....... Lord Cave LC., in using the phrase 'enduring
benefit' in British Insulated and He/sby Cables Ltd. v.
Atherton, 1926 A.C. 205, 213 (HL), was not thinking of
advantages that are permanent. There is a difference bet- E
- ween the lasting and the everlasting. The time over which
the thing 'endures' is a matter of degree and one element
only to be considered. Horses in the old days and motor
trucks in these days are plant and their acquisition for the
purpose of transport in business usually involves a capital
expenditure. But the horses were not immortal any more F
than the trucks have proved to be ......... ".

10. Shri Ramachandran submitted that the approach to the
question by the Tribunal was influenced by an erroneous assumption
that Meiji's agreement envisaged the imperative of a totally new plant,
for the exploitation of Meiji's improved fermentation technology. G
Learned counsel invited our attention to the following passage in the
order of the Tribunal where this postulate is found:

"On the other hand, a completely new plant with a
completely new process and a completely new technical
know-how was obtained by the assessee from Meiji and it H
314 SUPREME COURT REPORTS [1989] 2 S.C.R.

was in consideration of obtaining this technical know-how
A
that the assessee made the payment of$ 50,000."

Shri Ramachandran submitted that the Tribunal had failed to
take into account that even before the agreement, the assessee had set
up a plant for the production of penicillin at an out-lay of more Rs.66
B lakhs and that the purpose of the agreement with Meiji was only to ~
increase the yield of penicillin and that no new venture envisaging the ~. ·.
setting up of a new plant was ever intended by the assessee. The -'
production of penicillin which was the established line of business of
the assessee, says learned counsel, was to be improved upon with the
use of an improved process of fermentation with new penicillin pro-
-
ducing strains isolated and developed by Meiji so as to increase the
c unit yield of penicillin per milli-litre of the culture-medium. The sup- ~ -
ply of the technical know-how and the flow sheet of the process and
the written description of the specifications of the pilot plant from
Meiji were incidental to and for the effective exploitation of the high
penicillin yielding strains of the culture to be supplied by Meiji.
D Learned counsel submitted that the whole range of the operations
envisaged by the agreement, pertained to the area of the "profit earn-
ing process" and not the "profit earning machinery or apparatus". The
cost relationship between what was involved in the improvisation of
the process and the investment on the plant did, says counsel, indicate _.._
that the extant "profit earning machinery" was not sought to be sup-
E planted. Learned counsel also urged that there was no material for the
Tribunal to hold that the use of new process and technology from Meiji
amounted to a new venture not already in the line of the assessee's
existing business or that it required the erection of a new plant discard-
ing and supplanting the huge investment already existing. Learned
counsel submitted that it was no body's case that with the introduction
F of the Meiji process of fermentation with improved penicillin strains
the existing plant and machinery of over Rs.66 lakhs had become
obsolete and irrelevant or that the assessee had had to set up an
altogether new plant to work out the improvised Meiji-process of
fermentation.

G Learned counsel for the Revenue, however, sought to maintain ·y-.
that all the criteria relevant to the question indicated that the assessee
had acquired a new technical know-how for a new process which re-
quired the setting-up of a new plant. There was, according to Shri
Lodha, a new venture based on a new technology and know-how of
unlimited duration which required a new plant for its commercial exp-
H loitation. There were, according to Shri Lodha, both the acquisition of
ALEMBIC CHEMICAL v. C.l.T. [VENKATACHALIAH, J.) 315

an enduring asset and the commencement of a new venture.
A
11. On a consideration of the matter we are persuaded to hold
that there was no material for the Tribunal to record the finding that
the assessee had obtained under the agreement a 'completely new
plant' with a completely new process and a completely new technical
~ know-how from Meiji. Indeed, the High Court recognised the fallacy B
~. in this assumption of the Tribunal that a completely new plant was
obtained by the assessee, though, however, the High Court attributed
the inaccuracy to what it considered to be some inadvertence or misap-
prehension on the part of the Tribunal in that regard. But the High
Court was inclined to the view that a completely new process and
technical know-how was obtained from Meiji under the agreement.
-}-- Certain assumptions fundamental to, and underlying, the· approach of c
the High Court are that the agreement dated 9.10.1963 envisaged a
new process and a new-technology so alien to the extant infra-
structure, equipment, plant and machinery in the assessee's enterprise
as to amount to an entirely a new venture unconnected with and diffe-
rent from the line of assessee's extant business. It is in that sense that D
the expense was held not incurred for the purposes of the day to day
business of the assessee but for acquiring a new capital asset.

12. The business of the assessee from the commencement of its
plant in 1961, it is undisputed, was the manufacture of penicillin. Even
after the agreement the product manufactured continued to be penicil- E

- lin. The agreement with Meiji stipulated the supply of the "most suit-
able sub-cultures" evolved by Meiji for purposes of augmentation of
the unit-yield of penicillin milli-litres of the culture-medium. Scientific
literature on the bio-synthesis of penicillin indicates that penicillin is
derived from a fermentation process. Some penicillins are obtained
from direct fermentation and some others by a combination of fermen- F
tation and subsequent chemical manipulation of the fermentation pro-
duct. The manufacturing process, it is stated, consists of four proces-
ses: Fermentation, isolation, chemical modification and finishing.
Referring to the common basis of commercial production of penicillin
in the New Encyclopaedia Britannica, (Micropaedia, Vol. VII) it is
mentioned: G

"penicillin, antibiotic, the discovery of which in 1928 by Sir
Alexander Fleming marked the beginning of the antibiotic
era. Fleming observed that colonies of Staphylococcus au-
reus (the pus-producing bacterium) failed to grow in those
areas of a culture that had been accidentally contaminated H
316 SUPREME COURT REPORTS [1989] 2 S.C.R.

by the green mold Penicillium no ta tum. After isolating the
A mold, he found that it produced a substance capable of
killing many of the common bacteria that infect human
beings. This antibacterial substance, to which Fleming gave
the name penicillin, was liberated into the fluid in which the
mold was grown. This process is the basis of all commercial
B production of penicillin ....... "
(p. 850)
(Emphasis Supplied)

In Encyclopedia of Chemical technology (Kirk Othmer) III Edn.
Vol. 2 it is found mentioned:
c \
" .... The specific characteristics of the industrial micro- ~_
bial strains, media, and fermentation conditions cannot be
described in detail since these facts are considered trade
secrets. The origin of strains, and general principles of
culture maintenance, fermentation equipment, innoculum
D preparation, media, and fermentation conditions for
penicillin and cephalosporin production, are public
knowledge and are reviewed here.

E Fleming's original strain of P. notatum provided only
low yields of penicillin .............. Superior penicillin-
producing strain of P. chrysogenum have since been
obtained by random screening of variant strains following
mutation induction. All of the present day high-yielding
industrial strains are descendants of the NRRL 1951 strain r
F "

"Once a high-yielding strain has been isolated, it is essen- 4_
tial that the organism be maintained so that it remains via-
ble and capable of producing the antibiotic at its original
rate (54) . . . . . . . . . . . Under suitable conditions high-
G yielding strains can be preserved for many years without r-
loss of viability or antibiotic-producing ability ..... "
(p. 899-90)

We are inclined to agree with Shri Ramachandran that there was
no material for the Tribunal to hold that the area of improvisation was
H not a part of the existing business or that the entire gamut of the
ALEMBIC CHEMICAL v. C.I.T. IVENKATACHALIAH, J.I 317
j.
existing manufacturing operations for the conunercial production of A
penicillin in the assessee's existing plant had become obsolete or inap-
propriate in relation to the exploitation of the new sub-cultures of the
high yielding strains of penicillin supplied by Meiji and that the mere
introduction of the new bio-synthetic source required the erection and
commissioning of a totally new and different type of plant and machin-
B
~ ery. Shri Ramachandran is again right in the submission that the mere
improvement in or updating of the fermentation-process would not
~. necessarily be inconsistent with the relevance and continuing utility of
the existing infra-structure, machinery and plant of the assessee.
h

13. It would, in our opinion, be unrealistic to ignore the rapid
advances in Researches in antibiotic medical microbiology and to attri- c
-r- bute a degree of endurability and permanance to the technical know-
how at any particular stage in this fast changing area of medical
science. The state of the Art in some of these areas of high priority.
research is constantly updated so that the know-how cannot be said to
be the element of the requisite degree of durability and .nonephemera-
lity to share the requirements and quaJ:'ications of an en.during capital- D
asset. The rapid strides in science and technology in the field should
e·
make us a little slow and circumspect in too readily pigeon-holing an
outlay, such as this as capital.' The circumstance that the agreement in
+ so far as it placed limitations on the right of the asse.ssee in dealing with
the know-how and the conditions as to non-partibility, confidentiality
E
and secrecy of the know-how incline towards the inference that the

- right pertained more to the ·use of the know-how than to its exclusive
acquisition.

In the preserit case, the principal .reason that influen.ced the
option of the High Court was that the initiation and exploitation of the
new-process brought in their wake a new venture requiring an al- F
together new plant. We are afraid, this view may not be justified.
Clauses 2, 4 and 6 of the agreement provide:

"(2) For and in consideration of the subcultures,
design, flow sheet and written description to be furnished
by Meiji to ALEMBIC PURSUANT to paragraph (1) G
hereof, Alembic shall pay to MEIJI in advance and in lump
sum, such· as amount as MEIJI is able to collect Fifty
thousand U.S. Dollars ($ 50,000) net in Tokyo after de-
ducting any taxes and charges to be imposed in India upon
MEIJI with respect to the said payment to MEIJI."
H
318 SUPREME COURT REPORTS [19891 2 S.C.R.
A-
"4. MEIJI will give advice, to the extent considered neces-
sary be MEIJI, on any difficulty ALEMBIC.may encounter
in applying the subcultures and informations obtained by
ALEMBIC from MEIJI to the large scale manufacture.
The above provision shall be in force after MEIJI's receipt
of the amount set forth in paragraph (2) hereof until the
B end of two (2) years from the effective date of this agree- ~
ment ... " .~

"(6) Any of the subcultures and informations obtained by
ALEMBIC from MEIJI shall be regarded as strictly confi- A

dential by ALEMBIC and its personnel and shall be used
by ALEMBIC only in its Penicillin G plant in India, and
c shall not be disclosed to any other person, firm or agency, ~ -
governmental or private. Alembic shall take all reasonable
steps to ensure that such subcultures and information will
not be communicated . .ALEMBIC shall take ·all possible
precautions against the escape from its premises of the st-
D rain obtained from MEIJI of propagated therefrom.

ALEMBIC shall not apply for any patent to any country in ·~

relation to any of the subcultures and information obtained
by ALEMBIC from MEIJI." +
R As notified earlier the Tribunal in the course of its order, held:

" ...... Meiji agreed to give the designs etc., not only for a
pilot plant but for the manufacture of penicillin according to
Meiji's process on commercial scale. The assessee has to put
in a larger plant modelled on the pilot plant." ).;--
F (Emphasis Supplied)

Having regard to the terms of Clause 4 of the agreement, this 4
conclusion is non-sequitur.

The improvisation in the process and technology in some areas of
G the enterprise was supplemental to the existing business and there was r
no material to hold that it amounted to a new or fresh venture. The
further circumstance that the agreement pertained to a product
already in the line of assessee's established business and not to a new
product indicates that what was stipulated was an improvement in the
operations of the existing business and its efficiency and profitability
H · not removed from the area of the day to day business of the assessee's
established enterprise.
ALEMBIC CHEMICAL v. C.l.T. [VENKATACHALIAH, J.[ 319

14. It appears to us that the answer to the questions referred
A
should be on the basis that the financial outlay under the agreement
was for the better conduct and improvement of the existing business
and should, therefore, be held to be a revenue expenditure. Reference
may also be made to the observations of this Court in C.I. T. v. CIBA
of India Ltd., 11968] 2 SCR 696 at 705.
B
There is also no single definitive criterion which, by itself, is
determinative whether a particular outlay is capital or revenue. The
'once for all' payment test is also inconclusive. What is relevant is the
purpose of the outlay and its intended object and effect, considered in
a common-sense way having regard to the business realities. In a given
case, the test of 'enduring benefit' might break-down. In Commis-
sioner of Income-tax, Bombay v. Associated Cement Co. Ltd., (JT 282 c
2 287 at 290) this Court said:

" ..... As observed by the Supreme Court in the decision
in Empire Jute Co. Ltd. v. Commissioner of Income-Tax,
[1980[ 124 I.T.R. S.C. p. 1 that there may be cases where D
expenditure, even if incurred for obtaining an advantage of
enduring benefit, may, none the less, be on revenue ac-
count 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 principles laid down

-
in this test. What is material to consider is the nature of the E
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 application of this test ...... "

15. In the result, for the foregoing reasons the appeal succeeds
and is allowed and the question of law referred to the High Court for F
its opinion in Income Tax Reference No. 78 of 1970 is answered in the
affirmative and against the revenue. The judgment under appeal is
' J... set-aside.

Likewise, the supplementary question of law raised in ITA 24 of
1971 before the High Court and now constituting the subject-matter of G
the supplementary reference made by the Tribunal to this Court is
answered in the negative· and against Revenue.

The appeal is accordingly allowed, but with no order as to costs.

G.N. Appeal allowed. H