IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.04.2009 CORAM: THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Tax Case(Appeal) Nos.2110 and 2111 of 2008 The Commissioner of Income Tax-III Coimbatore .. Appellant -vs- M/s Shivraj Spinning Mills Ltd 86, Mangalam Road Tirpur. .. Respondent TAX CASES filed under Section 260 A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, MADRAS 'D' Bench, Chennai dated 16.06.2005 passed in ITA.Nos.94/296/Mds/2002 against Appeal Nos.171-C/2001-02 and 337-C / 2000-01 dated 26.12.01 & 28.11.01 respectively on the file of the Commissioner of Income Tax (Appeals)-II, Coimbatore against P.A.N./GIR No.S-2/C1 and PAN/GIR No.CV-2273/SR.II/CBE dated 28.2.01 & 16.10.2001 respectively on the file of the Joint Commissioner of Income Tax, Special Range-II, Coimbatore & Deputy Commissioner of Income Tax Circle - I / I/C), Tirupur respectively. For Appellant : Mr.J.Naresh KUmar Senior Standing Counsel (I.T) For Respondent: Mr.Sivaraman J U D G M E N T (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN,J) The revenue on appeal against the order of the Income Tax Appellate Tribunal MADRAS 'D' Bench, Chennai dated 16.06.2005 passed in ITA.Nos.94/296/Mds/2002. The appeals are admitted on the following question of law: " Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in holding that expenditure on replacement of old machinery by purchase and installation of new machinery was allowable as revenue expenditure?". 2. It is submitted across the bar by the counsel appearing on either side that the above questions of law, are covered by the decision of the Supreme Court in the case of Commissioner of Income Tax vs.Ramaraju Surgical Cotton Mills reported in 294 ITR 328, https://hcservices.ecourts.gov.in/hcservices/ wherein the Judgment of this Court in Commissioner of Income Tax (Appeals) vs. Janakiram Mills Limited reported in 275 ITR 430 was considered by the Supreme Court with reference to the contention of the assessee that replacement of assets without increasing the production capacity would amount to revenue expenditure. The Supreme Court remanded the matter by observing that there are a number of tests which are required to be considered while deciding whether the expenditure was revenue or capital in nature. In the absence of the requisite details regarding the production capacity remaining constant even after replacement, the matter could not be decided on merits and require to be remitted back to the Commissioner (Appeals) for consideration of that particular issue with reference to the production capacity. In this case also, there is no material available as to the increase or otherwise of the production capacity in replacement of the machineries. Without the factual details, the questions of law cannot be decided. Hence this case also require to be remitted back to the Commissioner of Appeals as done by the Supreme Court in the aforesaid decision. 3. Hence, the order of the Tribunal is set aside and the matter is remitted back to the Commissioner of Appeals to redo the exercise as directed by the Supreme Court in the case of Commissioner of Income Tax vs.Ramaraju Surgical Cotton Mills reported in 294 ITR 328. With the above observations, the appeals are disposed of. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rg To 1. THE COMMISSIONER OF INCOME TAX -III COIMBATORE 2. THE ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI 3. THE COMMISSIONER OF INCOME TAX (APPEALS -II) COIMBATORE 4. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - I (I/C) TIRUPPUR 5. THE JOINT COMMISSIONER OF INCOME TAX SPECIAL RANGE II, COIMBATORE T.C.A.Nos.2110 and 2111 of 2008 RL(CO) SRA(14/5/2009) https://hcservices.ecourts.gov.in/hcservices/