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2021 (8) TMI 1328 - AT - Income TaxWeighted deduction u/s 35(2AB) - Claim Denied on expenditure incurred for Research and Development on the ground of Non furnishing of Certificate in Form 3CL from Department of Scientific and Industrial Research (DSIR) - HELD THAT:- Both the lower authorities have rejected the same for the sole reason that the then taxpayer had failed to file corresponding Form-3CL issued by the prescribed authority i.e., Department of Scientific and Industrial Research ‘DSIR’. Case file indicates that the assessee has filed its additional evidence petition dt.08-10-2020 placing on record the DSIR’s approval in Form- 3CI, dt.28-11-2017 whereas the CIT(A)’s order under challenge is dt.30-10-2017. We therefore deem it appropriate to restore the instant former issue back to the Assessing Officer to be examined afresh in light of the DSIR approval dt.28-11-2017 issued in assessee’s case in AYs.2014-15 to 2016-17; as the case may be. Disallowance of depreciation - appellant acquired leasehold rights on land to setup a unit in SEZ - revenue contention in support of the impugned disallowance is that the assessee ought to have amortized the same u/s.35 - HELD THAT:- We find no merit in the instant contention per se in view of the fact that neither there is any specific provision in the Act nor is any CBDT circular to this effect. Hon'ble apex court’s recent decision in Taparia Tools Ltd. [2015 (3) TMI 853 - SUPREME COURT] rather holds that the claim of revenue expenditure is not to be denied merely because the same could also be split over a period of years. Coupled with this, this tribunal’s Special Bench in ACIT Vs. Progressive Constructions Ltd. [2017 (3) TMI 1167 - ITAT HYDERABAD] decides the issue in assessee’s favour that a right to operate any asset forms an intangible asset u/s.32(1)(ii) of the Act entitled for depreciation. Assessee in the instant case has taken land on lease to set up an SEZ and therefore, the same ought not to be taken as eligible for depreciation - We find no substance in the instant last plea as well as the assessee has claimed the impugned relief qua lease premium of Rs.5,85,30,062/- than regarding acquisition of the land along with its title. We therefore distinguish the Revenue’s arguments based on case law M/s. Mahanadi Coalfields Ltd [2018 (1) TMI 326 - ITAT CUTTACK] and M/s. Cyber Park Development & Construction Ltd.[2018 (1) TMI 326 - ITAT CUTTACK] in light of the foregoing Special Bench decision (supra). The assessee’s instant second substantive ground is accepted in principle. AO shall frame his consequential computation as per law.
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