JOINT COMMISSIONER OF INCOME-TAX, (OSD), CIRCLE -1, AURANGABAD vs. M/S. EAST WEST SEEDS LTD, AURANGABAD

The Revenue has raised following grounds in the appeal : “1. Whether, On the facts & in the circumstances of the case, the Ld. CIT(A), Aurangabad is justified in deleting the addition made on account of disallowance of deduction u/s 35(2AB) of the Act amounting to Rs.3,60,18,330/-, claimed by the assessee but not allowed by the DSIR. 2. Whether, On the facts & in the circumstances of the case, the Ld. CIT(A), Aurangabad is justified in interpreting the provisions of section 35(2AB) of the Act and Rule 6 of the Income Tax Rules 1962 in view of the decision of Hon'ble ITAT Hyderabad in the case of Electronics Corporation of India Ltd. (ITA No. 1106/Hyd/2011). 3. On the facts and in the circumstances of the case, the order of the AO be restored and that of the CIT(A)-1 be vacated. 4. The appellant craves leave to add, amend or alter all or any of the Grounds of Appeal.”

Shri Nikhil Pathak appearing on behalf of the assessee submitted that the issue in appeal is squarely covered by the decision of Tribunal in the case of Cummins India Ltd. Vs. Deputy Commissioner of Income Tax reported as 96 taxmann.com 576 (Pune-Trib.) and subsequent decision in the case of Bharat Forge Ltd. Vs. Addl. Commissioner of Income Tax in ITA No. 13/PUN/2017 for the assessment year 2011-12 decided on 14-11- 2018. The ld. AR submitted that the Commissioner of Income Tax (Appeals) has granted relief to the assessee by following the decision rendered by Ahmedabad Bench of Tribunal in the case of Torrent Pharmaceuticals Ltd. in ITA No. 3569/AHD/2004.

On the other hand Shri N. Ashok Babu representing the Department vehemently defended the assessment order and prayed for reversing the findings of Commissioner of Income Tax (Appeals).

Both sides heard. Orders of the authorities below perused. The solitary issue raised by the Revenue in appeal is against deleting the addition made on account of disallowance of deduction u/s. 35(2AB) of the Act. The assessee company is engaged in the business of production and procuring of vegetable, fruits and flower seeds from local as well as overseas market and sells them in Indian as well as export market. The assessee is also engaged in production and processing of hybrid seeds. The assessee has set up Research and Development facility to cater to the requirements of agricultural sector. The assessee claimed deduction u/s. 35(2AB) in respect of R & D facilities. The R & D center of the assessee is approved by DSIR. However, the claim of assessee was disallowed by the Assessing Officer on the ground that as against the assessee’s claim of weighted deduction of Rs.9,85,70,330/-, the DSIR has approved Rs.6,25,52,000/-. The contention of the assessee is that during the period relevant to assessment year under appeal DSIR has no power to quantify the deduction claimed by assessee u/s. 35(2AB). The only requirement is the recognition of R & D facility by DSIR. We find that the issue raised in the appeal is squarely covered by the decision rendered in the case of Cummins India Ltd. Vs. Deputy Commissioner of Income Tax (supra). The Tribunal after considering various decisions has held as under : “45. The issue which is raised in the present appeal is that whether where the facility has been recognized and necessary certification is issued by the prescribed authority, the assessee can avail the deduction in respect of expenditure incurred on in-house R&D facility, for which the adjudicating authority is the Assessing Officer and whether the prescribed authority is to approve expenditure in form No.3CL from year to year. Looking into the provisions of rules, it stipulates the filing of audit report before the prescribed authority by the persons availing the deduction under section 35(2AB) of the Act but the provisions of the Act do not prescribe any methodology of

We find that similar view was taken by the Co-ordinate Bench of Tribunal in the case of Bharat Forge Ltd. Vs. Addl. Commissioner of Income Tax (supra).

The Revenue has not placed on record any material to controvert the findings of Tribunal. Thus, after considering the undisputed facts of the case and the decisions of the Co-ordinate Bench on the issue, we uphold the findings of Commissioner of Income Tax (Appeals) in allowing assessee’s claim of weighted deduction u/s. 35(2AB) of the Act.

In the result, the impugned order is upheld and the appeal of Revenue is dismissed being devoid of any merit.