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2015 (4) TMI 1064 - Karnataka High Court

2015 (4) TMI 1064 - Karnataka High Court - TMI - Eligibility of deduction u/s 35(2AB) - validity of Certificate issued by the prescribed authority - Held that:- If any question arises as to what extent, any activity constitutes or constituted or an asset is or was being used for scientific research, then the Assessing Officer would be required to refer such question to the Board for being referred to the prescribed authority. The decision of the prescribed authority in this regard would be final .....

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ribed authority is not available to the Assessing Officer as could be seen from scheme of Section 35 of the Act.

As sub-section (4) of Section 43 will have to be considered, which defines as to what activities would constitute "scientific research" as indicated under the said Section namely, Section 43(4). As to whether any expenditure incurred in the acquisition of rights in or arising out of scientific research as indicated in clause (ii) of sub-section (4) of Section 43 is an issue .....

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Ltd.'s case (2012 (9) TMI 264 - GUJARAT HIGH COURT ). - Decided in favour of assessee - Writ Petition No. 7004 of 2014 (T - IT) - Dated:- 24-4-2015 - Aravind Kumar, J. N. Venkataraman, Sr. Counsel, K.R. Vasudevan and Harish, Advs. for the Petitioner. K.V. Aravind, Sr. Panel Counsel for the Respondent. ORDER 1. Petitioner is seeking for quashing of the assessment order passed by first respondent under 143(3) r/w Section 144C(13) of the Income Tax Act, 1961 (for short 'Act') dated 31.01.2 .....

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75,95,922/- On said return being selected for scrutiny, notice came to be issued and draft assessment order came to be framed on 27.03.2013 under Section 144C(1) of the Act whereunder income of petitioner was revised after making certain adjustments. On receipt of the draft assessment order, assessee filed its objection before the Dispute Resolution Panel ('DRP' for short) and after affording opportunity of hearing to the assessee, DRP issued a direction to the jurisdictional Assessing O .....

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r after considering the directions issued by the DRP, framed assessment order on 31.01.2013 -Annexure-R framed assessment order whereunder as against the deduction claimed by the assessee under Section 35(2AB) in respect of Research and Development expenditure in a sum of ₹ 89,35,48,193/-, a sum of ₹ 48,41,82,071/- was disallowed and same came to be added to the income of assessee-company. Further, a sum of ₹ 2,63,68,301/- claimed by the assessee as 100% deduction under Section .....

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t is arbitrary, without application of mind and it is without jurisdiction and has been passed without following due process of law. He would elaborate his submission by contending there are no foundational facts on the basis of which the first respondent could have ignored the certificate issued by the prescribed authority - Department of Scientific and Industrial Research (for short 'DSIR') which is the prescribed authority under Rule 6(1) of the Income Tax Rules, 1961 empowered to iss .....

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entific research' as permitted under Section 35(2AB) of the Act. It is contended that petitioner accordingly has obtained approval in form No. 3CL after audit came to be conducted by DSIR and a report has been submitted by the said prescribed authority by its report dated 10.04.2013 duly communicated to the Director General of Income Tax (Exemptions) whereunder expenditure to the tune of ₹ 46.03 Crores as against claim of ₹ 59.57 Crores of the petitioner came to be approved. It i .....

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on 35(2AB) on the premise that sub-section (2) Section 43(4) enables the Assessing Officer to exclude the expenditure incurred by an assessee in the acquisition of rights, in or arising out of scientific research and held that expenditure recorded as product development expenditure by the assessee cannot be accepted as research and development expenditure being eligible for deduction under Section 35(2AB) and Section 35(1)(i) r/w Section 43(4)(ii) of the Act and accordingly disallowance of the c .....

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efer the question to the prescribed authority whose decision would be final and the technical aspects being involved with regard to scientific research, the prescribed authority being a specialized authority, it would be in a better position to examine the issue and as such, this task of certifying or disallowing the claims made in this regard having been outsourced by the Revenue under the Act, Assessing Officer cannot sit in judgment over such certificate issued and hence, in the instant case, .....

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ng authority while examining the claim for deduction under Section 35(2AB) will have to necessarily accept the certificate or the report issued by the prescribed authority and once such report is furnished, Assessing Officer has no jurisdiction to examine the correctness or otherwise of such expenditure certified by the prescribed authority and the only option left to the Assessing Officer when disagreeing with the report is to seek for clarification from the prescribed authority through Board. .....

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tt.) v. Mastek Ltd. [2012] 210 Taxman 432/25 taxmann.com 133 (Guj.) (5) Raza Textiles Ltd. v. ITO [1973] 87 ITR 539 (SC) (6) Hemalatha Gargya v. CIT [2003] 128 Taxman 190 (SC) (7) Vodafone India Ltd. v. Union of India [2013] 40 taxmann.com 545/[2014] 221 Taxman 88 (Mag.) (Bom.) (8) Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 (SC) (9) CIT v. Foramer France [2003] 264 ITR 566/129 Taxman 72 (SC) (10) Union of India v. Kunisetty Satyanarayana [2007] 1 CLR 67 (SC) (11) Godrej Sara Lee Ltd. v. .....

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tion is liable to be dismissed on this ground alone. In support of this proposition, he has relied upon the judgment of Hon'ble Apex Court in the case of CIT v. Chhabil Dass Agarwal [2013] 357 ITR 357/217 Taxman 143/36 taxmann.com 36. 8. It is the contention of Sri K.V. Aravind, learned Panel counsel appearing for respondent-Revenue that present writ petition is liable to be dismissed on the ground that petitioner not having availed alternate remedy and contends that order impugned in the pr .....

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lowability sought for by the petitioner under Section 35(2AB) of the Act by rejecting the contention of assessee. He would further contend that only course that was left open to the Assessing Officer on receipt of approval of draft assessment order by DRP, was to accept the said findings of DRP and as such Assessing Officer has passed an order which is appealable under Section 253 of the Act before Income Tax Appellate Tribunal. On account of non availment of the alternate remedy, he prays for d .....

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submission by contending that if any question arises under Section 35(2AB) namely, as to whether and if so to what extent any activity constitutes or any asset is or was being used for scientific research, then such issue is required to be referred by the Board to 'Central Government' if such question relates to any activity under clauses (ii) & (iii) of sub-section (1) and to 'Prescribed Authority' when such question relates to any activity other than the activity specified .....

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by the learned Advocates appearing for the parties, this Court is of the considered view that following points would arise for consideration: "(1) Whether Writ Petition is liable to be dismissed on the ground of petitioner not having availed alternate remedy of filing an appeal before jurisdictional Income Tax Appellate Tribunal as provided under Section 253(4) of the Act? (2) If the answer to the above question is in the negative; Whether impugned order dated 31.01.2014 - Annexure-R passe .....

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by any other provisions of the Constitution of India. This Court has discretion to entertain or not to entertain a writ petition. However, availability of alternate remedy would be the normal rule for this Court to refuse to exercise its jurisdiction under Article 226 of the Constitution. But, it is not an inviolable rule and the availability of an alternate remedy would not act as a bar for this Court to exercise the extraordinary power. The self imposed judicial restraint one of which is that .....

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zing plethora of judgments, the Hon'ble Apex Court in Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai [1998] 8 SCC 1 has held exercise of jurisdiction by the High Court to entertain a writ petition under Article 226 of the Constitution of India, in spite of availability of alternative statutory remedies is not affected where the authority against whom the writ is sought for is shown to have exercised its jurisdiction which it had none or had usurped the jurisdiction without any legal fo .....

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is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".' 14. Thus, keeping this salutary principle in mind, w .....

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ondition for claiming deduction under Section 35(2AB) of the Act. 15. Section 43 of the Act would indicate that definition of certain terms relevant to "income from profits and gains of business or profession" has been defined. Under sub-section (4) of Section 43, the word "Scientific Research" has been defined. On the one hand, the assessee is contending that once a certificate is issued by the prescribed authority, the jurisdictional assessing officer would be out of bounds .....

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ssue of jurisdiction of assessing officer to examine such claim, is an issue which requires to be examined by this Court in this writ petition. 16. In the event of this Court coming to a conclusion that contention of the Revenue deserves to be accepted, then, the natural course which this Court will adopt is to dismiss the writ petition as being not maintainable since petitioner has an alternate remedy of filing statutory appeal. However, if it is being held that such power is not available to t .....

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e issue requires to be extracted and they are extracted herein below: '35. Expenditure on scientific research.- (1) In respect of expenditure on scientific research, the following deductions shall be allowed- (i)any expenditure (not being in the nature of capital expenditure) laid out or expended on scientific research related to the business. (ii) to (iv) ****** (2) For the purposes xxx of Section 32. (2A) Where xxx of Section 32A. (2AA) Where the assessee xxx authority. (2AB) (1) Where a c .....

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incurred. [Explanation - For the purposes of this clause, "expenditure on scientific research", in relation to drugs and pharmaceuticals, shall include expenditure incurred on clinical drug trial, obtaining approval from any regulatory authority under any Central, State or Provincial Act and filing an application for a patent under the Patents Acts, 1970 (39 of 1970) ] (2) No deduction shall be allowed in respect of the expenditure mentioned in clause (1) under any other provision of .....

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lowed in respect of the expenditure referred to in clause (1) which is incurred after the 31st day of March, [2017]. (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. (2B)(a) to (d) ****** (3) If any question arises under this section as to whether, and if so, to what extent, any activity constitutes or constituted, or any asse .....

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of certain terms relevant to income from profits and gains of business or profession. 43. In sections 28 to 41 and in this section, unless the context otherwise requires- (1) "actual cost" means xxx section 47. (2) "paid" means actually xxx profession. (3) "plant" includes xxx fittings. (4)[(i) "scientific research" means any activities for the extension of knowledge in the fields of natural or applied science including agriculture, animal husbandry or fis .....

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or, as the case may be, all businesses of that class; (b) any scientific research of a medical nature which has a special relation to the welfare of workers employed in that business or, as the case may be, all businesses of that class; (5) "speculative transaction" means xxx this purpose. (6) "written down value" means xxx this Act. INCOME TAX RULES, 1962 Prescribed authority for expenditure on scientific research. 6. (1) For the purposes of clause (i) of sub-section (1) an .....

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ction (2AA) of section 35 shall be made by a sponsor in Form No. 3CG. Explanation: For the purposes of this rule "sponsor" means a person who makes an application in Form No. 3CG. (4) The application required to be furnished by a company under sub-section (2AB) of section 35 shall be in Form No. 3CK. (5) The head of the National Laboratory or the University or the Indian Institute of Technology [or the Principal Scientific Adviser to the Government of India] shall, if he is satisfied t .....

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viser to the Government of India may authorize an officer who is not below the rank of a Deputy Secretary to issue such order, after the scientific research programme has been approved by him. (5A) The prescribed authority shall, if he is satisfied that the conditions provided in this rule and in sub-section (2AB) of section 35 of the Act are fulfilled, pass an order in writing in Form No. 3CM: Provided that a reasonable opportunity of being heard shall be granted to the company before rejecting .....

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search, sales promotions, quality control, testing, commercial production, style changes, routine data collection or activities of a like nature; (b) The prescribed authority shall submit its report in relation to the approval of in-house Research and Development facility in Form No. 3CL to the Director General (Income-tax Exemptions) within sixty days of its granting approval; (c) The company shall maintain a separate account for each approved facility; which shall be audited annually and a cop .....

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pproval of the Secretary, Department of Scientific and Industrial Research.' 18. A plain reading of section 35(2AB)(1) would indicate that where a company is engaged in the business of biotechnology or any business of manufacture or production of any article or thing, not being an article or thing specified in the list of the Eleventh Schedule incurs any expenditure on "Scientific Research" (not being expenditure in the nature of cost of any land or building) on in-house, research .....

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n of such scientific research. However, it does not include expenditure incurred in the acquisition of rights in or arising out of scientific research. Such expenditure incurred should be approved by the authority prescribed under Section 35(2AB) of the Act read with Rules framed thereunder. The authority prescribed to grant such approval under Rule 6(1B) of the Income Tax Rules, 1961 is the Secretary, Department of Scientific and Industrial Research. 19. A perusal of the above rule would clearl .....

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the application and if satisfied that conditions provided under Section 35(2AB) are satisfied would pass an order in writing in Form No. 3CM. In the event of such application of assessee is being rejected by the prescribed authority, an opportunity of being heard would be extended by the prescribed authority to the assessee. As per sub-section (4) of Section 35(2AB) the prescribed authority would in turn submit its report to the approval of the said facility to the Director General (Income tax .....

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atisfies the criteria prescribed under the Act, then alone it would issue the certificate by granting its approval to the expenditure incurred by a company. To put it differently, the prescribed authority is the authority under the Act which would examine the claim for grant of approval under Section 35(2AB). Pursuant to such application filed by assessee to the prescribed authority, a report would be submitted by the prescribed authority to the Director General (Income tax Exemptions) in Form N .....

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.01.2009 and after calling for documents/information from assessee and on examination and scrutiny of such documents/information furnished by assessee, Order of approval came to be granted in favour of assessee on 18.11.2009 in Form No. 3CM vide Annexure-G. 20. It would be apt to point at this juncture itself that in the event of any question would arise before the assessing officer under Section 35 as to whether amounts certified by the prescribed authority is eligible for being allowed as expe .....

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y the Income Tax Department and same is being done by the prescribed authority namely, Department of Scientific and Industrial Research. This is the plain meaning which can be deciphered from the perusal of above said statutory provisions. 21. Thus, reading of Section 35 (3) of the Act would clearly indicate that where the assessing officer does not accept the claim of the assessee made under Section 35(2AB), he has to refer the matter to the Board, which inturn, will refer the question to the p .....

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be referred to the prescribed authority by the Board on such doubt being raised by Assessing Officer and also on his request. It is the prescribed authority alone which would be competent to take a decision with regard to correctness or otherwise of its order of approval granted in Form No. 3CL as prescribed under Section 35(2AB) of the Act read with Rule 7A of the Rules. 22. Aforesaid view is also fortified by the judgment rendered by the High Court of Gujarat in the case of Mastek Ltd. (supra .....

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was perfectly justified in holding in favour of the assessee. Section 35(3) of the Act as noticed requires a reference to be made by the Board to the prescribed authority when a question arises as to whether and if so to what extent, any activity constitutes or constituted or any asset is or was being used for scientific research. The decisions of the prescribed authority on such a question would be final. In our opinion, therefore, whenever any such question arises, the Assessing Officer canno .....

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ficer cannot take a decision but must seek the opinion of the prescribed authority. We may hasten to add that only when such a question arises that the reference would be competent. For example, if in a given case, the assessee lodges a claim without any supporting material, it cannot be stated that the question has arisen which would require a reference by the Board. Similarly, if the Assessing Officer accepts the claim of the assessee, no such question can be stated to have arisen. We are, how .....

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to the facts on hand, case-papers would indicate that on return of income being filed by the assessee, same came to be processed by the first respondent by issuing notices under Section 143(2) and 142(1) of the Act. After clarification called for and on discussion with the assessee's representative, draft assessment order dated 27.03.2013 came to be forwarded to the assessee wherein the income was proposed as against the loss returned in the return of income. On receipt of the draft assessme .....

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rounds: (i) assessee has incurred expenditure of ₹ 13,95,73,315/- in respect of incompleted projects as the new products have not yet been developed; (ii) ₹ 11,00,79,095/- which are treated as capital expenditure by the assessee represents know-how/technology ready for use contributing to increase in revenue and thereby of enduring benefit to the assessee and as against claim of ₹ 16,51,18,640/-, 25% of such expenditure representing know-how was allowed. (iii) ₹ 9,14,82,1 .....

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by the second respondent that the mandate of the prescribed authority is limited to certifying to what extent, any activity constitutes or constituted, or any asset is or was being used for, scientific research. It is further held by the second respondent that allowability or otherwise of the expenditure will be governed by the express provisions of the Act. It has been held by the second respondent in the direction issued to the first respondent on 30.12.2013 under Annexure - Q as under: " .....

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iture does not fall in the scope of Section 35 of the Act the report of prescribed authority cannot be considered as far as such excluded expenditure is considered. The certificate of the prescribed authority cannot overrule the express provisions of the Act. Thus the stand of the AO that such expenditure gives rise to patents on products/processes which are intellectual property rights and therefore such expenditure is capital in nature (Capital work in progress as the project is incomplete) an .....

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35 of the Act when such expenditure does not fall within the scope of Section 35 of the Act. Second respondent while issuing direction to first respondent on 30.12.2013 under Annexure - Q has held as under: "12.1 We have carefully gone through the order passed by the Assessing Officer and by the TPO and the objections filed by the assessee as well as the records of the case of the assessee. It has already been decided in para 11 above that where the express provisions of the Act exclude cer .....

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oducts/processes which are intellectual property rights and therefore such expenditure is capital in nature (capital work in progress as the project is incomplete) and cannot be allowed u/s 35 of the Act. The arguments of the assessee in the said objection are essentially the same as in objection raised in para 11 above. Therefore the principle decided while dealing with such objection squarely applies to this objection also." Accordingly, the assessing officer disallowed the deduction clai .....

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e for weighted deduction in its return of income, the prescribed authority allowed a sum of ₹ 6,904 lakhs only though the Audit Certificate dated 10.04.2013 - Annexure - E issued by the auditor of the assessee indicated ₹ 7,009 lakhs as weighted deduction. 27. A plain reading of Section 35(2AB) would clearly indicate that where a company is engaged in the business of bio-technology or in any business of manufacture or production of any article or thing, not being an article or thing .....

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used and there cannot be departure in this regard. The said provision would also indicate that such expenditure as approved by the prescribed authority would be entitled for being allowed as a weighted deduction. There being no dispute to the fact that DSIR being the prescribed authority in the instant case, had issued the report in Form No. 3CL - Annexure - M certifying the total R&D expenditure (excluding land and buildings) as prescribed under Section 35(2AB) for a sum of ₹ 4,601.9 .....

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f such expenditure cannot be the subject matter of scrutiny by the assessing officer. It would also be required to be noticed that the assessing officer would be out of bounds to examine as to whether such expenditure as certified by the prescribed authority can be allowed or disallowed under Section 35 of the Act. In other words, the assessing officer is precluded from examining the correctness or otherwise of the certificate issued by the prescribed authority on the ground that it is either be .....

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he parameters of statutory provisions of the Act or otherwise. Keeping in mind that such contingency may arise, Parliament has incorporated sub-section (3) to Section 35 of the Act which would be a complete answer to such situations. Thus, if any question arises as to what extent, any activity constitutes or constituted or an asset is or was being used for scientific research, then the Assessing Officer would be required to refer such question to the Board for being referred to the prescribed au .....

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is exercise of examining the correctness of the Certificate issued by the prescribed authority is not available to the Assessing Officer as could be seen from scheme of Section 35 of the Act. 28. It is in this background, sub-section (4) of Section 43 will have to be considered, which defines as to what activities would constitute "scientific research" as indicated under the said Section namely, Section 43(4). As to whether any expenditure incurred in the acquisition of rights in or ar .....

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ority in Form No. 3CL. This view is also supported by the judgment of the High Court of Gujarat in Mastek Ltd.'s case (supra). 29. For the myriad reasons aforestated, Point No. (2) formulated herein above will have to be answered in the affirmative, i.e., in favour of petitioner - assessee and by concluding that the impugned order dated 31.01.2013 - Annexure - R and consequential demand notice dated 31.01.2014; - Annexure - R1 are without jurisdiction. 30. In view of the finding that Assessi .....

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