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2015 (11) TMI 748 - ITAT AHMEDABAD

2015 (11) TMI 748 - ITAT AHMEDABAD - [2015] 42 ITR (Trib) 149 (ITAT [Ahm]) - Eligibility of deduction u/s 80-IB(8A) - revision u/s 263 - Held that:- Once the Department of Scientific and Industrial Research which is an expert body exercises power to grant approval for the purpose of the impugned deduction under section 80-IB(8A) read with rules 18D and 18DA of the Income-tax Rules, the Revenue cannot decline the deduction claims arising thereunder on one pretext or the other by simply brushing a .....

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red infructuous. The Revenue's sole substantive ground in its appeal challenging the Commissioner of Income-tax (Appeals)'s order granting the assessee impugned section 80-IB(8A) deduction fails accordingly. - Decided in favour of assessee. - I. T. A. Nos. 1915 /Ahd/ 2012(assessment year 2009-10) and 1623 /Ahd/ 2014(assessment year 2008-09). - Dated:- 31-7-2015 - ANIL CHATURVEDI (Accountant Member) and S. S. GODARA (Judicial Member) Mrs. Vibha Bhalla for the Appellant Mukesh M. Patel for the Res .....

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15/Ahd/2012 for the assessment year 2009-10 arises from the order of the Commissioner of Income-tax (Appeals)-6 Ahmedabad in case No. CIT(A)-VI/DCIT.Cir.1/266/11-12, allowing the assessee's claim of section 80-IB (8A deduction) of ₹ 22,22,47,186, in proceedings under section 143(3) of the Act. 2. We come to the former assessment year first. The assessee- company is engaged in the business of clinical testing of drugs and formulations on human beings. It filed its return on September 15 .....

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Income-tax formed an opinion that the abovestated assessment was erroneous and caused prejudice to the interests of the Revenue since the Assessing Officer had accepted the abovestated deduction claim without verifying its eligibility conditions stipulated therein. And also that the assessee was only a contract research organisation without any transfer of the technology developed. He accordingly issued a section 263 notice dated February 13, 2013. 3. The assessee filed its reply contesting the .....

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rastructure facilities and manpower deployed under rule 18DA(1)(c), relevant details of research and development programme formulated with projects undertaken, details of research and development activities leading to technology development and improvement thereof along with annual returns filed with the prescribed authority (DSIR, i.e., Department of Scientific and Industrial Research). It highlighted its response dated November 3, 2010 claiming itself to have satisfied all the conditions under .....

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dated November 16, 2010 placing on record all necessary documents filed with the Department of Scientific and Industrial Research returns, subsequent deliberations in the course of scrutiny and its patent application filed with reference to the related products and justified the Assessing Officer's action in granting section 80-IB(8A) deduction in question. It raised a legal plea that the Assessing Officer had taken one of the possible views, rather the only possible view which could not be .....

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at one of the conditions is that the assessee should, be 'engaged exclusively in sci entific research and development activities leading to technology development, improvement of technology and transfer of technology developed by themselves' (rule 18DA(1)(e)). However, it is seen that the assessee has only applied, for patent and no patent was granted, to it. Thus, the fact whether any new technology was developed or not was far from established. The patent application may ultimately be .....

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e, that no such list of parties to whom the technology was transferred was provided at the assessment stage. One of the conditions is that the technology developed should be transferred. In the instant case, there was no evidence on record, to show that this condition had been fulfilled. Accordingly, it is held that the Assessing Officer had accepted, the contention of the assessee without making proper enquiries and verification in this regard. The allowance of deduction without any evidence is .....

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r dated July 19, 2013 observed that section 80-IB(8A) deduction provision nowhere required acquisition of any patent rights as a precondition for allowing the relief. It held that the Commissioner of Income-tax had not given any opportunity to the assessee for placing on record annexure-2 comprising list of the assessee's cliental for the purpose of technology transfer. The co-ordinate Bench accordingly restored the issue back to the Commissioner of Income-tax for decision afresh. The Commis .....

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Ahmedabad seeking withdrawal of its approval granted under section 80- IB(8A). It also reiterated the submissions made in first round of proceed ings hereinabove. The assessee also raised a legal plea that it had already taken up the issue of impugned deduction before the Commissioner of Income-tax (Appeals) against the Assessing Officer's action excluding its sample storage income from the deduction claimed hereinabove (supra). The Commissioner of Income-tax rejected all these pleas. He, i .....

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e revised with section 263 jurisdiction of very wide amplitude and the abovestated assess ment framed was without a proper inquiry and investigation which was revisable under section 263 being erroneous and prejudicial to the interests of the Revenue. Thereafter, he considered the Department of Scientific and Industrial Research's letter hereinabove rejecting the Revenue's case for withdrawing section 80-IB(8A) approval and directing the Assessing Officer to redo the assessment as under .....

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he Department of Scientific and Industrial Research has thus communicated that there is nothing on record against the company for withdrawal of approval. It can, therefore be inferred that the Department of Scientific and Industrial Research approval has been granted on the basis of the available facilities and discussion regarding research and development activity. While granting approval, the Department of Scientific and Industrial Research has not mentioned anything about the actual activitie .....

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services of conducting clinical trials of various drugs and formulation of clients which mainly comprises of pharmaceutical companies. As per the Income-tax Act, 1961, in order to claim deduction under section 80-IB(8A), the following conditions are required to be satisfied: (i) The company should be registered in India, (ii) The company's main object should be scientific and industrial research and development, (iii) For the time being, the company should be approved by the prescribed auth .....

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ific research and development. In other words, the assessee simply provides the infrastructure required for conducting research to outside agencies. On the same lines, the assessee also does not satisfy condition No. (iv) as the various clauses of rule 18DA are not fulfilled in the case of the assessee. As per the provisions of rule 18DA (1)/(2), the company is expected to be exclusively engaged in scientific research and development leading to development/improvement of new technology and trans .....

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this was the only condition then the remaining conditions prescribed in rule 80-IB(8A) and rule 18DA would be rendered redundant. The contention of the assessee that section 80-IB(8A) should be considered as correctly granted on the basis of the Department of Scientific and Industrial Research approval is therefore misplaced. 10. On examination of the annexure-II submitted by the assessee, it is seen that the assessee has not developed any new technology or improved any existing technology nor .....

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islature behind granting 100 per cent. deduction of profits to eligible assessee is that scientific research is an inherently risky venture since positive outcome is not guaranteed and the expenditure incurred is likely to go in vain due to failure. Here, the element of risk is not involved since the assessee is not conducting independent research. There is no rationale on the basis of which deduction under section 80-IB(8A) read with rule 18DA(1)/(2) can be claimed by the assessee. The assessee .....

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g the assessment proceedings. Therefore, the Assessing Officer had not formed any opinion on the basis of the contents of annexure-II which was not presented before him. 12. Considering the above facts and findings, it is amply clear that the assessee is not eligible to claim deduction under section 80-IB(8A) as it does not satisfy all the provisions enlisted under section 80-IB(8A) and rule 18DA. Since the Assessing Officer had allowed deduction under section 80-IB(8A) amounting to ₹ 11.7 .....

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ficer is directed to pass a fresh assessment order after considering the issue involved and after allowing opportu nity to the assessee as per law." 7. This leaves the assessee aggrieved. It has filed I. T. A. No. 1623/Ahd/ 2014 against this Commissioner of Income-tax's order dated March 29, 2014 in proceedings under section 263 of the Act. 8. Now we come to the later assessment year 2009-10 involving the Revenue's appeal I. T. A. No. 1915/Ahd/2012. The assessee filed its return thi .....

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ce, bio-availability and clinical trial studies for its clients/pharmaceuticals companies namely M/s. Cadila Health Care Ltd., Lupin, Apotex Research Pvt. Ltd., IPCL Laboratories and Dr. Reddy's lab. The Assessing Officer formed an opinion that the assessee's role was only that of merely providing professional service of analysis of clinical samples and not of scientific and industrial research and development under section 80-IB(8A). He issued a show cause notice proposing to disallow t .....

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Industrial Research, list of its infrastructural facilities, skilled staff employed, break-up of party- wise receipts with all necessary details. Copy of the Department of Scientific and Industrial Research approval in its ongoing field of research was also placed on record in support. The Assessing Officer did not agree to the same. He passed assessment order on December 30, 2011, inter alia, discussing the necessary conditions of section 80-IB(8A) deduction read with rule 18DA of the Income-t .....

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quilance study and not from transfer of any technology. The assessee's payees had deducted TDS under sections 194C and 194J. The Assessing Officer accordingly viewed it as a case of contractual payment wherein its payers were also eligible for section 35 deduction relating to the research development expenses which could not be the legislative intention. He referred to the assessee's accounting policy on record not showing transfer of any technology. The Assessing Officer accordingly dis .....

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ule 18D for carrying on of scientific research and development by the prescribed authority, i.e., the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. The approval was initially granted for a period of three assessment years which was further extended. As per rule 18D, prescribed authority grants approval for further period subject to satisfactory performance of that company on periodic review. Conditions prescribed for deduction under se .....

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nditions set out in the Income-tax Act/ Rules. The appellant's counsel stressed on this aspect and claimed that all the conditions mentioned in rule 18DA read with section 80-IB(8A) are fulfilled. Even after granting the approval by the prescribed authority, sub-rule (3) of rule 18DA gives power to the Department of Scientific and Industrial Research to withdraw the approval so granted. One of the conditions for such withdrawal of approval is-if any provisions of the Income-tax Act or Rules .....

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anted is withdrawn by the prescribed authority, the appellant will not be entitled to claim deduction under section 80-IB(8A). However without getting the approval withdrawn, the Assessing Officer had disallowed the claim on the ground that the condition mentioned in rule 18DA(1)(e) is not fulfilled. The arguments of the Assessing Officer are that the bio-equivalent study done by the appellant is not development of technology and since the appellant was doing the same for various clients on cont .....

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ddressed by the appellant in its submission. It is also mentioned as to how the conditions prescribed by the Income-tax Act/Rules are fulfilled. If the Assessing Officer finds that the appellant is not eligible for deduction under section 80- IB(8A) then the best course is to get the approval from the prescribed authority cancelled on the ground of violation of such conditions. There is no doubt that the Department of Scientific and Industrial Research has the technical competence to judge the e .....

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the Assessing Officer should refer the violation of any condition to the prescribed authority before disallowing the claim based on such approval. The other objection of the Assessing Officer is that the appellant received contractual service charges on development of bio-equiva lent study on which TDS was also deducted and therefore there was no sale and transfer of technology involved. The appellant submitted that the mode of collecting technology transfer charges is not relevant till such ti .....

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therefore it is not the case of double deduction. The decisions relied upon by the Additional Commissioner of Income-tax in appeal hearing are on different facts and do not draw any similarity to the issue involved. The appellant's entire methodol ogy has been before the prescribed authority who in their wisdom considered the same as development of technology and transfer thereof therefore the narrow interpretation proposed by the Assessing Officer do not hold good. The appellant relied upo .....

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cience and Technology is made the prescribed authority, any rejection of claim without serious violation of the conditions or withdrawal of approval is not sustainable. Accordingly it is held that the appellant is eligible for deduction under section 80-IA(8) till such time it holds approval from the prescribed authority. Accordingly the disallowance of deduction made by the Assessing Officer is deleted." 11. The Revenue has filed its appeal in I. T. A. 1915/Ahd/2012 against this order. 12. .....

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e as per law, the Commissioner of Income-tax's jurisdiction exercised is against the express provision under section 263 Explanation (c) in the Act since the matter was in appeal before the Commissioner of Income-tax (Appeals) (supra) and the last one being that it fulfils all conditions for availing of deduction under section 80-IB(8A) read with rule 18DA(1)/(2) of the Income-tax Rules. The Revenue strongly supports the Commissioner of Income-tax's order under challenge and prays for af .....

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e can be held entitled for the impugned section 80-IB(8A) deductions in question, in the two assessment years in question. We find from the paper book the Department of Scientific and Industrial Research (supra) granted approval to the assessee for the assessment years 2007-08 to 2009-10 by specifically declaring it as a research and development company under section 80-IB(8A) read with the provisions of rules 18D and 18DA of the Income-tax Rules. The same stood extended on February 19, 2009 for .....

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oval on January 17, 2013. The said authority declined this relief vide letter dated March 20, 2013. We find this letter to be a part of pages 14 and 15 clearly stating that the assessee's activity to be covered as a company in commercial research and development. This letter further contains the designations of eminent experts in this entire episode. We observing these facts that once the Revenue sought for revoking the assessee's approval under section 80- IB(8A) of the Act to the Depar .....

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ssessee's favour as under : "17. In ground Nos. 1 and 2 of its appeal for the assessment year 2007-08, a common issue raised by the assessee relates to the disallowance of its claim for deduction under section 80-IB of the Act amounting to ₹ 6,11,26,795 made by the Assessing Officer and confirmed by the learned Commissioner of Income-tax (Appeals). 18. As already noted, the claim of the assessee for deduction under section 80-IB(8A) of the Act was disallowed by the Assessing Offic .....

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assessee that while disallowing its claim for deduc tion under section 80-IB(8A), the Assessing Officer completely overlooked the important fact that the assessee's activity of clinical trials was duly approved by the prescribed authority under rule 18D namely the Secretary Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. It was contended that the said approval was granted only after the complete satisfaction as to the nature of acti .....

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rity was not good in law especially when the said approval was granted after examining all the relevant aspects. 19. The learned Commissioner of Income-tax (Appeals) did not find merit in the submissions made on behalf of the assessee on this issue and upheld the action of the Assessing Officer in disallowing the assessee's claim for deduction under section 80-IB(8A) of the Act for the following reasons given in paras 3.3 to 3.8 of his impugned order : "3.3. I have considered the facts .....

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y at any time after the 31st day of March, 2000 but before the 1st day of April, 2007 ; (iv) Fulfils such other conditions as may be prescribed. The prescribed authority for the condition (iii) above is Secretary, Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India and the conditions as per (iv) above are provided in rule 18DA of the Income-tax Rules. 3.4. Rule 18DA(1) provides the following conditions : Any company carrying on scientific res .....

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rising of time bound research and development projects with proper mechanism for selection and review of the projects or programme ; (e) is engaged exclusively in scientific research and development leading to technology development, improvement of technology and transfer of technology developed by themselves ; (f) submits the annual return along with statement of accounts and annual report within eight months after the close of each accounting year to the prescribed authority. 3.5 The assessee .....

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ore, I do not accept the appellant's argu ment that since the company is approved by the prescribed authority, i.e. Secretary, Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India, there was no reason or basis for the Assessing Officer to examine the issue. 3.6 Now the question is whether the assessee fulfils all the conditions. From the facts, there is no doubt that the assessee fulfils conditions (i) and (iii). The Assessing Officer has .....

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research organization in delivery of superior services in the conduct and management of clinical trials. It strives to produce high quality acceptable to regulatory authority worldwide. It wants to evaluate newer medicines and techniques to strive to uplift the quality of life. (3) Its team carries out 'clinical trials for Phase II to Phase IV' in accordance with the requirements of regulatory authorities and the International Conference on Harmonization of Technical Require ments for Re .....

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red. There is specific methodology for costing of each project and the cost of each project undertaken is determined by the various factors such as number of patients, time frame for recruitment of patients, number of investigation sites and cost of investigators institutions, time frame of treatment under protocol and complexities, method and type and cost of pathological and other investigations required for each patient. (7) The appellant has filed details of projects programmes completed dur .....

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analysis of the same', The objective is to provide clinical trial supplies to the sites where the sponsor is conducting the clinical trials', The objective is to provide project management for the study, 'sponsor is carrying out a study with NP02 in infants with pre-natal exposure to Hepatitis B surface antigen positive mothers', The objective is to provide quality assurance review and report on sponsor's study', 'Sponsor has collected the data. The objective is to m .....

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t involves various stages such as idea concept, arrangement of manpower and infra structure, research resultant product, testing of the product, approval of such product by regulatory authority and then transfer of the product to earn income. Out of these, the appellant is involved only in the stage of testing of the product and that too on behalf of others. Its only job is to conduct clinical trials on behalf of various pharma ceutical companies, collect datas as per their instructions/require .....

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earned counsel for the assessee submitted that the deduction under section 80-IB(8A) of the Act is allowable to the company carrying can scientific research and development if such company is registered in India having its main object the scientific and industrial research and development provided it is for the time being approved by the prescribed authority and fulfils such other conditions as may be prescribed. He submitted that the prescribed authority for this purpose, i.e., Secretary, Depar .....

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y him containing details and, documents submitted to the prescribed authority while seeking the approval to point out that all the relevant information such as list of scientists and professionals employed by the assessee-company, details of infrastructure, information about the laboratory, list of presentations filed, list of clients and research contract, etc., were called for and examined by the prescribed author ity. He also pointed out from page 250 of the paper book that the representative .....

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riod of three more years. He contended that the prescribed authority having given the approval to the assessee-company for the purpose of claiming deduction under section 80-IB(8A) of the Act after having examined and satisfied that the conditions prescribed in rule 18DA were fulfilled, the Assessing Officer was not empowered to sit in appeal against such approval and disallow the assessee's claim for deduction under section 80-IB(8A) of the Act disregarding such approval. In support of this .....

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g Officer on account of the assessee's claim for deduction under section 80-IB(8A) of the Act. He contended that the approval of the prescribed authority is one of the conditions to be satisfied for claiming deduction under section 80-IB(8A) of the Act and there are other conditions also which are required to be satisfied cumulatively in order to claim the said deduction. He submitted that the other conditions to be satisfied are prescribed in rule 18DA of the Income- tax Rules, 1962 and the .....

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ditions stipulated in rule 18DA were not satisfactorily satisfied by the assessee as found by the Assessing Officer as well as the learned Commissioner of Income-tax (Appeals), the claim of the assessee for deduction under section 80- IB(8A) of the Act has rightly been disallowed. As regards the decision of the Tribunal in the case of Rubicon Research P. Ltd. (supra) cited by learned counsel for the assessee, the learned Departmental representative contended that interpretation given by the Trib .....

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sment year if such company is registered in India having its main object the scientific and industrial research and development provided it is approved by the prescribed authority and it satisfies such other conditions as may be prescribed. The prescribed authority is Secretary, Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India and the other conditions to be fulfilled are prescribed in rule 18DA of the Income-tax Rules, 1962. We have alread .....

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f the Act are satisfied by the assessee or not. It is pertinent to note in this context that the voluminous paper book filed by the assessee giving details and documents furnished before the prescribed authority is sufficient to show that the approval was not only granted by the prescribed authority but was also renewed/extended twice after having satisfied about the main objective of the assessee-company, the research and development activities carried on by it and infrastructure facilities ava .....

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that when the approval was initially granted and 'further renewed only when the assessee had satisfied the prescribed authority that it was carrying on the activity of scientific and industrial research and development and was having necessary infrastructure to do so, the Assessing Officer or the learned Commis sioner of Income-tax (Appeals) could not sit on appeal on such approval and re-examine whether the conditions stipulated for claiming deduction under section 80-IB(8A) of the Act were .....

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ommissioner of Income-tax (Appeals) for that matter cannot sit in appeal against the order of such authority. Keeping in view of the decision of the co-ordinate Bench of this Tribunal in the case of Rubicon Research Ltd. (supra) and that of the hon'ble Bombay High Court in the case of Indian Planetary Society (supra) and having regard to the facts of the case, we set aside the order of the learned Commissioner of Income-tax (Appeals) confirming the disallowance made by the Assessing Officer .....

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