H.R Khanna, C.J:— The following question has been referred to this Court under section 256(1) of the Income tax Act, 1961.

“Whether on the facts and in the circumstances of the case, the expenditure of Rs. 9,418 is a permissible deduction?”

The statement of the case relates to the assessment year 1962-63. The relevant previous year ended on December 31, 1961. Jagat Cinema (Bareilly), the assessee, is a partnership firm. The assessee took Cinema Hall, known as Jagat Cinema, with shops and out houses situated in Bareilly on lease under a lease deed dated December 20, 1957. The period of the lease began from January 1, 1957 and terminated on December 31, 1961. Clauses (6), (10) and (11) of the lease deed read as under :—

“(6) That on the termination of the lease, the lessee will be entitled to remove his Talkie Equipment with its wiring and all fittings and furnitures and deliver possession to the lessor without any damage to the building whatsoever.

(10) That the Lessee will keep the fixture, decoration etc., in good condition and in order and will allow the lessor or his nominee to inspect his property any time except at the time of actual show. The lessee will replace all shortages, breakages etc., with due expeditions.

(11) That the repairs of the building will be made by the lessee and the annual whitewashing and painting etc., will be made by the lessee at his own cost according to their taste, but the lessor will contribute Rs. 120 (one hundred twenty) annually towards white washing and painting to the lessee.”

During the relevant previous year the lintel near the stage of the cinema hall collapsed as a result of which damage was caused to the screen and the stage. The lintel was reconstructed by the assessee in pursuance of the aforesaid terms of the lease deed. While reconstructing the stage and the screen, the assessee increased the dimensions. Rs. 11,418 were spent by the assessee on the above construction and he claimed that amount as a permissible deduction. In answer to the query of the Income-tax Officer regarding the increase in the expenditure under the head “repairs and renewals” the assessee wrote as under :

“The expenditure under this head last year was Rs. 1,716, while this year it is Rs. 11,418. Similar normal expenditure this year is about Rs. 2,000. The rest of the expenditure relates to the alteration and replacement of the stage into a large size than what it was before and replacement thereof. The stage had fallen off. The cinema was closed for 7 day for alteration and repair from 13-3 to 17-3. Thus no new asset was created by these expenses. The stage was already there. Mere alteration thereof does not create any new asset. The expenses have taken the character of revenue nature only”.

The Income-tax Officer allowed Rs. 2,000/- out of the total expenditure and disallowed the balance of Rs. 9,418/- on the following ground :—

“The assessee has filed a written explanation in which it has been stated that the normal expenditure in this year is about 2,000 and that the rest of the expenditure relates to the alteration and replacement of the stage into a larger size. It has further been contended that the stage has fallen off, and that the cinema had to be closed for 7 days for new alteration. It was contended by Shri Aiyer that no new asset has come into existence and that this should be allowed as ordinary repairs and renewals. The assessee himself has stated that in place of old stage, a new and bigger stage was made. This clearly goes to show that a new asset has come into existence and, therefore, the amount of Rs. 9,511 is treated as capital expenditure and disallowed.”

On appeal the Appellate Assistant Commissioner upheld the finding of the Income tax Officer that the expenditure in question was of a capital nature as a new asset or improvement had come into being in the shape of a new stage, new screen and a new flooring. The assessee then took the matter in appeal to the Income-tax Appellate Tribunal. The Tribunal referred to the provisions of section 10(2)(ii) and 10(2)(v) of the Income-tax Act of 1922 and observed :

“In our opinion, section 10(2)(ii) applies to the case of premises held by an assessee as a tenant while section 10(2)(v) applies to the case of a building held by an assessee as an owner. The reason for using different expressions viz., ‘repairs’ in section 10(2)(ii) and “Current repairs” in section 10(2)(v) is not far to seek in the case of a building owned by an assessee, the expense incurred for anything beyond current repairs would be of a capital nature, while in the case of premises held by an assessee as a tenant, repair expenses incurred in pursuance of a term of the lease deed cannot, speaking broadly, be said to be of a capital nature inasmuch as the assessee does not normally thereby acquire any interest or benefit of an enduring nature. Such a repair would appear to form a part and parcel of the consideration of rent agreed to be paid for the use and occupation of the property.”

It was further observed.

“5. The only point that remains to be considered is whether the repair expense, even to a limited extent, can be said to be of a capital nature. It has been pointed out that the stage has been widened and the screen has been enlarged. Unless the construction brings a benefit of an enduring nature to the assessee, or unless it changes the identity of the property, it cannot be categorised as a capital construction. So far as the question of the change of the identity of the property is concerned, one has to look to the building as a whole and not to the part which is reconstructed. It is possible to say in the present case that the cinema theatre has lost its identity and that new asset has come into existence simply because the stage and the screen have been enlarged. We have hence to consider whether the enlargement of the stage and the screen can be said to bring a benefit of an enduring nature to the assessee. We are at a loss to understand how the enlargement of the stage is of any significant value to the assessee who exhibits pictures in the building. Perhaps the position may have been slightly different if the assessee were a dramatic company. We also fail to appreciate how the enlargement of the screen has formed a benefit of an enduring nature to the assessee.”

The Tribunal arrived at the conclusion that no portion of the expenditure incurred by the assessee could be held to be of a capital nature. The assessee's claim for allowing the deduction of the balance amount of Rs. 9,418 was accordingly allowed. The question reproduced above was thereafter referred to this Court at the instance of the Revenue.

At the time of the hearing of the case, the learned counsel for the parties are agreed that as the matter relates to the assessment year 1962-63, it would be the provisions of the Income-tax Act of 1961 which would apply. All the same it is conceded that there is no material difference in this respect in the provisions of the Act of 1922 and those of the Act of 1961. According to section 30 of the Income-tax Act of 1961 the deduction on account of repairs of premises occupied by an assessee as a tenant and used for the purpose of business or profession is permissible “if he (the assessee-tenant) has undertaken to bear the cost of repairs to the premises. The extent of the deduction is “the amount paid on account of such repairs”. The question with which we are concerned is whether the entire amount of Rs. 11,418 spent by the assessee can be held to be the amount paid on account of repairs. In this respect we find that the amount of Rs. 11,418 was spent not merely on the reconstruction of the lintel and the restoration of the stage and screen which had been damaged as a result of the collapse of the lintel but also on the widening of the screen and the stage. The amount to the extent it was spent on the reconstruction of the lintel and the restoration of the screen and stage to the state in which the lintel, screen and stage were before the wearing out and collapse of the lintel, can legitimately be held to have been incurred on the repairs. Any amount, which was spent over and above that for the purpose of the widening of the screen and the stage, cannot be held to have been expended on repairs. The dictionary meaning of the word “repair” as given in Shorter Oxford English Dictionary, is “the act of restoring to a sound or unimpaired condition; the process by which this is accomplished. Restoration of some material thing or structure by the renewal of decayed or worn out parts, by refixing what has become loose or detached”. In the case of Highland Railway v. Special Commissioners of Income Tax, 2 Tax Cases 485 (1), the railway had relaid a portion of the main line and in doing so had substituted steel rails of greater weight for the previous iron rails. No question was raised as to the cost of relaying the rails except as regards the additional weight and cost of the improved rails as compared with the original rails. The railway company claimed to deduct the additional cost as a proper charge against revenue on the ground that no permanent improvement of their property had been effected by the substitution of the heavier and costlier steel rails, and that they derived no additional revenue from the outlay. The Lord President, in rejecting the company's contention, said “It must be kept in view that this is not a mere relaying of line after the old fashion. It is not taking away rails that are worn out or partially worn out and renewing them in whole or in part along the whole line”. The above case was relied upon by their Lordships of the Judicial Committee in the case of Rhodesia Railways, Ltd., v. Income-tax Collector, Bechuana Lard Protectorate, (1933) 1 ITR 227 (2), and it was observed:

“The contrast between the cost of relaying the line so as to restore it to its original condition and the cost of relaying the line so as to improve it is well brought out in the passage just quoted, and while the former is recognised as a legitimate charge against income the extra cost incurred in the latter case in the improvement of the line is equally recognised as a proper charge against capital”.

In view of the above, we are of the opinion that so much of the amount as was spent for the widening of the screen and the stage, can be considered to have been incurred for the purpose of effecting improvements. It cannot, however, be said to have been spent for repairs.

The above finding would not, however, settle the matter. According to sub-section (1) of section 37 of the Income-tax Act of 1961, 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”. It is not disputed by Mr. Kirpal, on behalf of the Revenue, that the entire amount of Rs. 11,418 was expanded wholly and exclusively for the purposes of the business of the assessee and that other conditions contemplated by the above provision except in one respect, to which reference would be made hereafter, are fulfilled. The contention of Mr. Kirpal, however, is that the amount to the extent it was spent for the purpose of widening the screen and stage was in the nature of a capital expenditure and as such the assessee cannot claim deduction to that extent under sub-section (1) of section 37 of the Act. In this connection we are of the view that if the assessee had been the owner of the cinema building, the above amount would have been characterised as capital expenditure. The same would have been the position if the assessee, though not an owner of the cinema building, was to retain its possession as a lessee for some years after the year in which the amount was spent. Where, however, as in the present case the expenditure was incurred for the widening of the screen and stage in the last year of the lease, the expenditure cannot be held to be one in the nature of capital expenditure. There is nothing to show that the lessee was entitled to remain in possession of the cinema building on the expiry of the period of lease or that he in fact continued in possession of that building after the expiry of the above period. It has also not been shown to us that the lessee was entitled to any compensation from the lessor for the improvement effected by the assessee in the widening of the stage and screen. As the expenditure made for the widening of the screen and stage did not bring into existence an asset or advantage for the enduring benefit of the business of the assessee it cannot be deemed to be a capital expenditure. The border line between revenue and capital expenditure, though very thin and sometimes blurred and baffling, is not very elusive. It yields to close examination and admits of being discerned and delineated. In deciding the question as to whether a particular expenditure is in the nature of a capital expenditure or not for the purpose of section 37, we have to look to the nature of expenditure, the purpose and object of incurring it and more especially whether the business or profession of the assessee would have a benefit of enduring nature as a result of that expenditure. If the business or profession of the assessee does not derive a benefit of enduring nature from the incurring of the expenditure, it would not be excluded from the permissible deduction referred to in section 37 of the Act. The above rule only enunciates the broad approach; ultimately each case would have to be decided on its facts within the frame work of that approach and in the light of the basic principle. As observed by Viscount Radcliffe in Commissioner of Taxes v. Nchanga Consolidated Copper Mines Ltd., (1965) 58 I.T.R 241(3), “all these phrases, as, for instance, ‘enduring benefit’ or ‘capital structure’ are essentially descriptive rather than definitive, and, as each new case arises for adjudication and it is sought to reason by analogy from its facts to those of one previously decided, a Court's primary duty is to inquire how far a description that was both relevant and significant in one set of circumstances is either significant or relevant in those which are presently before it.”

In the case of Assam Bengal Cement Co. Ltd. v. Commissioner of Income-tax West Bengal, (1955) 27 ITR 34(4), their Lordships of the Supreme Court, while dealing with the question of revenue expenditure and capital expenditure, 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 capital and is of 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. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source of the manner of the payment would then be of no consequence.”

In the light of the above observations and the facts of the present case we are of the opinion that the expenditure in question cannot be held to be a capital expenditure as the object of the incurring of that expenditure was not to bring into existence an asset or advantage for the enduring benefit of the business of the assessee. The assessee as such would be entitled to claim the amount of expenditure for widening the screen and stage as permissible deduction under sub-section (1) of section 37 of the Income Tax Act of 1961.

We would, therefore, answer the question, referred to this Court, in the affirmative, i.e, in favour of the assessee. Looking to all the facts, we leave the parties to bear their own costs.

A.N.K Reference answered in affirmative