TMI Blog2023 (5) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... itions. This denial of extension was communicated to the AO by the prescribed authorities. If the appellant is aggrieved by the denial of extension of approval u/s 35(2AB), the only course of action available to the appellant is to invoke writ jurisdiction of the Hon ble High Court. Thus, the material on record clearly indicates that there was no requisite approval as envisaged u/s 35(2AB), which is condition precedent for availing the benefit of deduction u/s 35(2AB) As settled principle of construction while construing the provisions of exemption, the provisions should be construed strictly as laid down by the Constitution Bench of the Hon ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs Dilip Kumar Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied the conditions as specified u/s 35(2AB) for claiming weighted deduction as recognized/granted by the DSIR for R D activity. 5. On the other hand, ld. Sr. DR placing reliance on the orders of the lower authorities prayed for the sustenance of the addition. 6. We heard the rival submissions and perused the material on record. The issue in the present appeal relates to whether or not the appellant is entitled for weighted deduction u/s 35(2AB) in respect of expenditure incurred on R D under the provisions of section 35(2AB) of the Act?. For better appreciation, the provisions of section 35(2AB) read as under :- 35. (2AB)(1) Where a company engaged in the business of bio-technology or in any business of manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility and fulfils such conditions with regard to maintenance of accounts and audit thereof and furnishing of reports in such manner as may be prescribed. (4) The prescribed authority shall submit its report in relation to the approval of the said facility to the Principal Chief Commissioner or Chief Commissioner or Principal Director General or Director General in such form and within such time as may be prescribed. (5) [***] (6) No deduction shall be allowed to a company approved under sub-clause (C) of clause (iia) of sub-section (1) in respect of the expenditure referred to in clause (1) which is incurred after the 31st day of March, 2008. 7. On mere perusal of the above provisions of the Act, it would be clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Vs Dilip Kumar Company Others in Civil Appeal No.3327 of 2007 decided on 30.07.2018. 8. Reliance placed by the ld. AR on the decision of the Hon ble Delhi High Court in the case of Maruti Suzuki India Ltd. (supra) has no application to the facts of the present case, inasmuch as, the ratio laid down in the said case is that once the requisite approval is granted to an assessee u/s 35(2AB) by prescribed authorities, there is nothing in the provisions of law u/s 35(2AB) that only the approval is relevant not the date of approval of facility availing the benefit u/s 35(2AB), as it amounts to reading more than in law which is not expressly provided in the present case. Admittedly, in the present case, no approval as envisaged u/s 35(2A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction in respect of expenses incurred from that date onwards. Whereas the entire expenditure incurred on R D has to be allowed as weighted deduction. The ratio of the said decision of the Hon ble Gujarat High Court (supra) has no application to the facts of the present case. As admittedly, there was no requisite approval u/s 35(2AB), the decision of the Co-ordinate Bench of the Bombay Tribunal in the case of ACIT vs. Meco Instruments (P.) Ltd., 7 taxmann.com 24 (Mumbai Trib.) and in the case of Advance Enzyme Technologies (P.) Ltd. vs. ACIT, 116 taxmann.com 498 (Mumbai - Trib.) have no application to the facts of the present case. In those cases, admittedly, the requisite approval in Form No.3CM was obtained by the assessee for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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