P. Shanmugam, J. 1. The petitioner is a share broker and a member of the Cochin Stock Exchange. He is also engaged in textile business. He is an assessee under the Income-tax Act, 1961, on the files of the first respondent. The challenge in this original petition is against the orders passed by the Commissioner of Income-tax in revision under Section 264 of the Act confirming the orders of assessment for the periods 1992-93 and 1993-94.
2. The brief facts leading to the filing of this original petition are as follows : The petitioner as a member of the Cochin Stock Exchange made contributions to the Stock Exchange building fund. This amount though claimed by the petitioner as a revenue expenditure incurred wholly, necessarily and exclusively for carrying on business, was not accepted by the Assessing Officer and from exhibit P-l assessment it could be seen that the petitioner himself ultimately agreed for treating this amount as capital expenditure. Accordingly, the said contribution amounting to Rs. 1,07,461 was added to the assessee's total income. For the year 1993-94, a sum of Rs. 42,539 was added on the same basis to the assessee's total income. The petitioner filed a revision against these orders. Before the Commissioner, the petitioner agreed that this is a voluntary contribution to a capital fund and can be disallowed and added back to the income returned. The asses-see himself agreed here also with the disallowance. The relevant extract from the order of the Commissioner is as follows :
"As this is a voluntary contribution to a capital fund, this is also disallowed and added back to the income returned.
The assessee, Sri Mahesh B. Shah, agrees to the above disallowance. I agree to the above.
(Sd.) Mahesh B. Shah, March 13, 1995."
3. In these circumstances, two questions that arise for consideration are whether the petitioner is entitled to resile from the admission made before the officers and whether the contribution is a revenue expenditure. As far as the first point is concerned the contention of learned counsel for the petitioner is that this concession is against the statute and on the face of threat by the Department that if he does not agree, further proceedings will be taken against him to reopen the assessment and he was coerced to agree. I am unable to agree with the said contention. The petitioner has agreed to treat the expenditure as a capital expenditure both before the Assistant Commissioner of Income-tax as well as before the revisional authority. No evidence or material is furnished to show that the petitioner was coerced to make a statement. Nothing prevented the petitioner to retract the same. The allegation of compulsion or coercion cannot be accepted on a mere statement. It is too late in the day to claim any compulsion. The present stand is nothing but an afterthought self-serving and appears to have been made to suit the convenience. The petitioner himself has signed it on March 13, 1995. Therefore, it will not be permissible to allow the petitioner to go back on his own stand before the authorities below. Such a stand is permissible and will not go against any law.
4. The second question is whether this contribution is a revenue expenditure that can be deductible. Section 37 of the Income-tax Act allows any expenditure not being in the nature of capital expenditure or persona! expenses of the assessee laid out or expended wholly and exclusively for the purposes of the business. The contention of the petitioner before the authorities below is that the assessee does not have any right on the building fund and hence the same cannot be treated as capital expenditure. In Empire Jute Co. Ltd, v. CIT [1980] 124 ITR 1, the Supreme Court held that it is not a universally true proposition that what may be a capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer. The Supreme Court held that whether it is capital expenditure or revenue expenditure would have to be determined having regard to the nature of the transaction and other relevant factors. The petitioner appears to have not raised these questions which he wants to argue. No materials have been furnished to show before the authorities or before this court to establish that this is a revenue expenditure and it is expended wholly and exclusively for the purposes of the business. From the admitted fact that the contribution made to the building fund of the Cochin Stock Exchange appears to be a voluntary contribution and the fact that this has been treated as a capital income in the hands of the Cochin Stock Exchange does not automatically follow that it is a revenue expenditure in the hands of the assessee. That apart, the question, though raised, was not pursued further. On the contrary, the petitioner had conceded before the authorities that this is a capital expenditure and therefore it has to be treated as income. There is no error or illegality in exhibits P-3 and P-4 orders. Therefore, there is no scope to interfere with the confirming orders by invoking the jurisdiction under Article 226 of the Constitution of India.
5. In O. P. No. 17756 of 1998 in reference to a similar claim, I declined to interfere, though it may be on the basis of the judgment in Mafatlal Industries Ltd. v. Union of India [1997] 5 SCC 536. For all these reasons I do not find any grounds to interfere with the orders, exhibits P-3 and P-4. Accordingly, the original petition fails and it is dismissed.