|DATE:||(Date of pronouncement)|
|DATE:||December 12, 2012 (Date of publication)|
|Click here to download the judgement (sardar_sarovar_setting_up_business_special_bench.pdf)|
Law on “setting up” of business vs. “commencement of business” explained
The assessee was formed for the purpose of construction of a canal for supply of water and for construction of a dam for generation of power. The assessee claimed that in AY 2001-02, the canal was partially complete and that it had started the activity of supplying water and that its’ business was “set up” and that the revenue expenditure incurred from that date was allowable as a deduction u/s 37(1). The AO & CIT(A) held that the mere flow of water through the Narmada Canal did not amount to commencement of business as it was not on a commercial basis and no revenue was earned there from. On appeal by the assessee, the Division Bench recommended that the issue be referred to the Special Bench. On the assessee’s request, the President held that the Special Bench would decide the entire appeal. The department objected to the reference of the entire appeal to the Special Bench on the ground that issues which had been decided against the assessee by the Tribunal in the earlier years and which was pending before the High Court could be re-agitated by the assessee. HELD by the Special Bench:
(a) The department’s objection to the entire appeal being referred to the Special Bench on the ground that it amounts to a “virtual review” of the earlier orders of the Tribunal, appeals from which were pending in the High Court, is not acceptable because (a) the President has the power u/s 255(1) to refer the entire appeal to the Special Bench, (b) it is not open to the revenue to challenge the constitution of the Special Bench and (c) the question whether the business has been set up in AY 2001-02 depends on the facts of that year and there is no question of a review of a contrary decision given for an earlier assessment year;
(b) U/s 3, the previous year for a business newly set up is the period beginning with the date of “setting up” of the business. Till the business is “set up”, all expenses have to be capitalized. There is a clear distinction between a “commencement of a business” and “setting up a business”. A business can be said to have been “set up” when it is ready to commence the business for which it has been established. An assessee can be said to have set up its business from the date when one of the categories of its business is started and it is not necessary that all the categories of its business activities must start either simultaneously or that the last stage must start before it can be said that the business was set up. The test to be applied is as to when a businessman would regard a business as being commenced and the approach must be from a commonsense point of view (Western India Vegetable Products 26 ITR 151 (Bom), Ramaraju Surgical Cotton Mills Ltd 63 ITR 478 (SC) & Sarabhai Management Corp 102 ITR 25 (Guj) followed);
(c) On facts, though the assessee’s canal was only partially complete (or complete in parts), it was able to achieve supply of water. This was sufficient to hold that the assessee was ready to serve the purpose for which it was formed. The assessee’s business consists of different categories. Construction of dams and canals would be the activity which would precede the other activities and an essential part of the business activity of the Assessee. As one category of business was started, the business was set up. The flow of revenue from supply of water is not relevant for deciding whether the business has been set up. Consequently, the assessee’s business was set up on 21.2.2001 when water was supplied through the canals and all revenue expenditure after that date has to be allowed as a deduction.