TMI Blog2021 (8) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted an undertaking for the purpose of deduction? - HELD THAT:- The identical issue in the case of assessee herein has already been considered by this Court in [ 2021 (7) TMI 1387 - KERALA HIGH COURT] and decided in favour of the assessee and against the revenue. Hence Question No.3 is answered in favour of the assessee and against the revenue. Addition made u/s.36(1) (va) r.w.s.2(24)(x) in respect of belated payment of employees' contribution to PF - HELD THAT:- The identical issue has already been considered by this Court in [ 2019 (4) TMI 370 - KERALA HIGH COURT] and answered in favour of the revenue and against the assessee. Hence Question No.4 is answered in favour of the revenue and against the assessee. Weighted de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent : Sr Adv Joseph Markos JUDGMENT S.V.BHATTI, J. Heard Sr.Advocate Joseph Markose and learned Standing Counsel Sri. Christopher Abraham for parties. 2. The appeal is directed against the order dated 10.1.2017 in ITA No.257/Coch/2015 of ITAT Cochin Bench. The issues canvassed relate to the return filed by the assessee for the assessment year 2010-11. Substantial Question No.1 Whether on the facts and in the circumstances of the case and on an interpretation of Section 32(1)(iia) read with the second proviso, is the Hon'ble ITAT right in law in holding that the left over additional depreciation brought forward from immediately preceding assessment year has to be allowed in the subsequent assessment year and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e? 4. The identical issue has already been considered by this Court in ITA No.151 of 2010 and answered in favour of the revenue and against the assessee. Hence Question No.4 is answered in favour of the revenue and against the assessee. Substantial question No.2 Whether on the facts and in circumstances of the case is the Hon'ble ITAT is right in law in allowing the assessee's claim of weighted deduction under Section 35(2AB) in respect of the salary paid on outdoor R D facility without qualification of the DSIR and that too following conflicting case laws. 5. The assessee was served draft assessment order dated 28.3.2014 under Section 144C of the Act. Objection-10 deals with the claim of deduction under Section 35 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting to Rs.1,89,96,439/- and accepted the weighted deduction claimed by the assessee company at house facility. 7. The Revenue filed appeal before the Income Tax Appellate Tribunal in ITA No.257/Coch/2015 and the Tribunal considered the question as follows: In the present appeal we are concerned with the amount of Rs.3.89 crores. The assessee submitted during the course of assessment proceedings that the said amount represents reimbursement of salary and other costs as incurred towards employees. It was further submitted that one of the employee, Mr.Peter Becker is employed on the rolls of Apollo Tyres, Germany, a subsidiary of Apollo Tyre Limited but he is overall incharge of the R D activities of the company in India and devot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities at Baroda. The mere fact that the said employee was paid by Apollo Tyres, Germany and thereafter reimbursed by the assessee company would not ipso facto lead to a conclusion that the expense on R D is made outside India. The deduction is therefore within the parameters of Section 35(2AB) of the Act. In view thereof, Ground No.3 raised by the department is dismissed. 8. The said finding is assailed by the revenue. The question refers to salary paid at an outdoor R D facility and the payment is without qualification of the DSIR. The case law cited is not followed both by the DRP and the Tribunal while accepting the weighted deduction under Section 35(2AB) of 50% on the salary paid to Mr.Peter Becker. The question does not refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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