CREST SPECIALITY RESINS PRIVATE LIMITED,KHEDA, GUJARAT vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(1)(2), AHMEDABAD (NOW DCIT, CIRCLE 1(1)(1), AHMEDABAD), AHMEDABAD, GUJARAT

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 3– Depreciation on electrical installation 9) The learned CIT(A) has erred in law and in fact in confirming (he action of the learned AO in making disallowance of the depreciation of Rs, 5,54.435/- claimed on electrical installation by holding electrical installation as electrical fittings. 10) The learned CIT(A) has erred in law and in fact in confirming the action of learned AO in restricting the rate of depreciation on electrical Installations @ 10% despite the fact that same is eligible for depreciation @ 15%. 11) The learned CIT(A) has erred in law and in Fact in confirming the action of learned AO in treating the "Electrical Installations" forming part of the block "Plant and Machinery" as "Electrical fittings" forming part of the block "Furniture and fittings". 12) The learned CIT(A) has erred in law and in fact in not allowing depreciation on electrical installation at the rate of 15% as Plant and Machinery despite the fact that the learned CIT(A) has allowed additional depreciation on the same. 13) The learned CIT(A) has erred in law and in fact in not appreciating the fact that the Hon'ble 1TAT in the Appellant's own case for AY 2011-12 on identical issue has allowed depreciation on electrical items as electrical installation at the rate of 15%. Your appellant craves the right to add to or alter, amend, substitute, delete or modify all or any of the above grounds of appeal

.” Ground Nos. 3 to 5 : Research and Development expenses under Section 35(2AB) of the Act

3. The brief facts of the case are that the assessee is engaged in the business of manufacturing polymer resins and chemicals. During the course of assessment, the Assessing Officer observed that assessee had claimed an amount of Rs. 2,06,38,415/- as deduction under Section 35(2AB) of the Act. On perusal of the certificate issued by DSIR dated 13.11.2014 and also Form 3CL issued by the Secretary, DSIR, the Assessing Officer observed that DSIR had approved revenue expenditure of Rs. 44,33,000/- and capital expenditure of Rs. 35,17,000/- for the impugned assessment year. However, in it’s books of accounts, the assessee had claimed revenue expenses of Rs. 64,80,106/- and capital expenditure of Rs. 43,78,545/- on which weighted deduction @ 200% &1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 4– had been availed. Accordingly, the Assessing Officer restricted the claim of deduction under Section 35(2AB) of the Act to Rs. 79,50,000/- and the excess claim of deduction availed by the assessee to the extent of Rs. 47,38,415/- was disallowed and added as income of the assessee.

4. In appeal, Ld. CIT(A) allowed 100% deduction in respect of revenue expenditure of Rs. 15,07,662/- under Section 37(1) of the Act and allowed 100% of the capital expenditure under Section 35(1) of the Act which was not approved by DSIR. However, the Ld. CIT(A) did not grant weighted deduction of 100% on Rs. 15,07,662/- (being the revenue expenditure disallowed by the Assessing Officer) and Rs. 8,61,545/- (being the capital expenditure added by the Assessing Officer), by holding the reasoning given by the Assessing Officer.

5. The assessee is in appeal before us against the aforesaid order passed by Ld. CIT(A), partly allowing the appeal of the assessee.

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 5– 7. In response, Ld. D.R. placed reliance on the observations made by the Assessing Officer and Ld. CIT(A) in their respective orders.

8. On going through the facts of the instant case we observe that the case of the assessee is covered by the decision of ITAT Ahmedabad Tribunal in assessee’s own case for A.Y. 2013-14 in ITA No. 28/Ahd/2017. It would be reproduced the relevant extracts of the aforesaid decision for ready reference:

“6. During the course of appellate proceedings before us, the ld. counsel contended that the issue is covered in favour of the assessee by the decision of the Co-ordinate Bench of the ITAT vide in the case of Sun Pharmaceuticals Industries vs. Pr. CIT dated 17.05.2019. The ld. counsel has also placed reliance on the decision of Co-ordinate Bench of the ITAT vide & 5390/Mum/2017 in the case of M/s. Crompton Greaves Ltd. vs. ACIT dated 27.09.2019. The ld. counsel has also placed reliance on the decision of Torrent Pharmaceutical Ltd (2009) 28 CCH 781 (Ahmedabad). The ld. counsel submitted that the requirement for quantification of expenditure for claiming deduction was made w.e.f. 1.7.2016 as per the sub-rule (7A) of Rule 6 of Income Tax Rule, 1961. On the other hand, the ld. Departmental Representative has supported the order of lower authorities.

7. It was the action of the DSIR in issuing Form No.3CL (APB pgs. 89 & 90), dated 24.08.2010, quantifying the eligible expenditure at Rs.11,04,63,000/-, as against that of Rs.11,32,97,688/-, resulting in a difference of Rs.28,34,688/- , which prompted the A.O. to make the disallowance in question.

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 8–

17. Be that as it may, the disallowance stands objected to by the assessee before us, which issue we have answered in the preceding paragraphs. In view of the above, finding merit in ground no. 1 raised by the assessee, the same is hereby accepted to the reversing order passed by the ld. CIT(A) on this issue and deleting the disallowance of Rs.42,52,032/-, made u/s. 35(2AB) of the Act.” In the above cited findings, the ITAT has also referred the decision of the ITAT, Ahmedabad in the case of Sun Pharmaceutical Ind. Ltd. Vs. Pr. CIT (2017) 162 ITD 484 as upheld by the Hon’ble Gujarat High Court vide its decision reported at 250 taxman 270. In the light of the findings as supra and amendment to sub-section (3) of section 35 w.e.f. 1-04-2016 for furnishing of report, we consider that there is nothing before us on hand differs from the cases cited (supra) so as to take a different view on this issue. Therefore, since the issue on hand being squarely covered following the principle of consistency, we find merit in the submission of the assessee and allowed the claim of deduction. Therefore, this ground of appeal

is allowed.”

9. Further, we observe that in the case of Schaeffler India Ltd. vs. PCIT 150 taxmann.com 528 (Ahmedabad – Trib.), while dealing with the similar issue, the ITAT Ahmedabad had made the following observations in this regard:

“7. We have heard the rival contentions and perused the material on record. On going through the records of the case, we observe that in the instant facts, the Assessing Officer had made detailed inquiries into the claim of deduction of the assessee u/s. 35(2AB) of the Act. The assessee had filed replies in relation to the queries raised by the ld. Assessing Officer and after considering replies filed by the assessee, the Assessing Officer allowed the claim of the assessee u/s. 35(2AB) of the Act. Therefore, evidently, it is not a case where there was any lack of inquiry on the part of the Assessing Officer regarding claim of deduction u/s. 35(2AB) of the Act. The next issue for consideration is whether the view taken by the ld. Assessing Officer was a legally tenable view or could it be inferred that ld. Assessing Officer had taken an incorrect view in the instant facts and therefore the order passed was erroneous and prejudicial to the interest of the Revenue. We observe that the in the case of Provimi Animal Nutrition India Pvt. Ltd. vs. PCIT Bangalore [2021] 124 taxman.com 73 (Bangalore Trib), the ITAT held that prior 01-07-2016, Form 3CL granting approval by prescribed authority in relation to quantification weighted deduction u/s. 35(2AB) of the Act had no legal sanctity and it was only w.e.f. 01-07-2016 that quantification of weighted deduction u/s. 35(2AB) of the Act is significant. We observe that in the case of Sun Pharmaceutical vs. PCIT [2017] 77 taxman.com 202/162ITD 484 Ahmedabad ITAT held that where assessee had already obtained approval of its in house research and development facility in form 3CM, Commissioner could not revise assessment framed by Assessing Officer allowing deduction u/s. 35(2AB) of the Act merely on the ground &1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 10– of non-submission of report of prescribed authority under form 3CL. Further, we observe that the Mumbai ITAT in the case of Reliance Industries Ltd. vs. ACIT [2022] 143 taxman.com 194/[2023] 198 ITD 158 held that amendment to provisions of Rule 6(7A)(b) w.e.f. 01-07-2016 whereby prescribed authority can quantify expenditure eligible for weighted deduction under sub-section (2AB) of section 35, would apply only for assessment year 2017-18. Further, we observe that the Gujarat High Court in the case of CIT vs. Sun pharmaceutical Industries Ltd. [2017] 85 taxmann.com 80/250 Taxman 270 held that where assessee, engaged in research and development on pharmaceutical products, claimed deduction u/s. 35(2AB), in view of fact that research and development facility had been approved by prescribed authority in proper format i.e. Form 3CM merely because said authority failed to send intimation to Department in Form 3CL, it would not be enough to deprive assessee’s claim of deduction.”

10. Accordingly, in light of the facts of the assessee’s case and the judicial precedents referred to above, Ground Nos. 3 to 5 of the assessee’s appeal is allowed.

Ground Nos. 6 to 8 : Disallowance under Section 40A(2)(b) of the Act 11. The brief facts in relation to this ground of appeal are that during the course of assessment proceedings, the Assessing Officer observed that the assessee had paid commission to Shri Ranajit B. Sen-HUF of Rs.17,00,000/-, Smt. Ami Udeshi of Rs. 8,00,000/-, Shri Prakash R Udeshi-HUF of Rs. 5,31,250/- and Shri Sushantkumar Pramanik-HUF of Rs. 9,56,250/-. The Assessing Officer observed that the aforesaid payment on account of commission was paid by the assessee to related parties and the said payment called for disallowance in view of the provisions of Section 40A(2)(b) of the Act. The Assessing Officer was of the view that the assessee has not been able to produce any information, details or information regarding the genuineness of these payments and was of the view that amounts paid by the assessee to these parties were non-genuine and that these parties were nothing but dummy persons utilized by the assessee in order to manipulate it’s accounts and artificially inflates it’s expenses, for the year under consideration. The Assessing Officer observed that even for A.Y. 2013-14 and 2014-15, the Ld. CIT(A) on identical &1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 11– set of facts had confirmed the disallowance of payment made to the same parties. Accordingly, the Assessing Officer disallowed the assessee’s claim for payment of commission of Rs. 39,87,500/- and added the same to the total income of the assessee.

12. In appeal, Ld. CIT(A) confirmed the addition by placing reliance on the order of his predecessor for A.Y. 2013-14.

13. The assessee is in appeal before us against the aforesaid order passed by the Ld. CIT(A), confirming the addition in the hands of the assessee.

14. Before us, the Counsel for the assessee submitted that the issue of allowability of commission has been dealt by ITAT Ahmedabad in assessee’s own case for A.Y. 2013-14 in wherein the ITAT deleted the disallowance under Section 40A(2)(b) of the Act, with respect to similar commission expenses. Copy of the order passed by the ITAT has been placed on record before us.

15. Further, the Counsel for the assessee submitted that even for A.Y. 2014- 15 the ITAT Ahmedabad in assessee’s own case in vide order dated 23.02.2022 deleted similar addition on account of commission payment to sister concerns. Copy of ITAT order for A.Y. 2014-15 has been placed before us for our records. Accordingly, the Counsel for the assessee submitted that since the issue is directly covered in favour of the asessee for immediately preceding assessment years by orders of ITAT Ahmedabad in assessee’s own case, the aforesaid disallowance is no longer sustainable in the eyes of law.

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 12– 16. In response, Ld. D.R. placed reliance on the observations made by the Assessing Officer and Ld. CIT(A) in their respective orders.

“8. During the course of assessment, the Assessing Officer noticed that assessee has paid commission to Prakash Udeshi HUF amounting to Rs. 1,50,000/- Ranjeet Sen HUF of Rs. 4 lacs and Sushanto Pramanik HUF of Rs. 2 lacs. The Assessing Officer stated that clarification given by the assessee regarding details of services rendered keeping in view section 10A(2)(b) of the Act was of the general nature. Therefore, claim of commission payment to the amount of Rs. 7,50,000/- was disallowed and added to the total income of the assessee.

9. Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has restricted the disallowance to Rs. 6 lacs after deleting the disallowance of commission paid to Prakash Udeshi HUF of Rs. 1,50,000/-.

10. Heard both the sides and perused the material on record. During the course of assessment, the Assessing Officer has disallowed the expenditure incurred on payment of commission to persons specified u/s. 40A(2)(b) stating that assessee has failed to establish the genuineness of the expenditure. On perusal of the material on record, it is observed that during the course of assessment, the assessee has explained the specific services rendered by the parties to whom the commission was paid along with the detail of their expenses and TDS on the transaction of commission payment. We have also gone through the different pages of the paper book pertaining to the details of commission expenditure furnished by the assessee. In the paper book submitted, the assessee placed copies of invoices raised by the commission agent, along with ledger account, acknowledgement of income tax return for A.Y. 2013-14. The assessee has also enclosed the copies of I.T. returns filed by these parties showing the amount of commission earned in their return of income. It is noticed that Assessing Officer has not made any further verification, investigation and examination from the parties to whom the sales were made through the commission agents to disprove the facts reported by the assessee in its submission. The Assessing Officer has not demonstrated any material or information gathered to disprove the genuineness of the expenditure incurred on commission payment of Rs. 6 lacs, therefore, we consider the decision of the ld. CIT(A) to sustain the disallowance is not justified. Therefore, we do not find any merit in the decision of ld. CIT(A) and the appeal of the assessee is allowed.”

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 13–

“3. The brief facts of the case are that the assessee company carries on the business of manufacturing of polymer resins and chemicals. During the year, the assessee paid commission to four parties- Prakash Udeshi HUF (Rs. 3,24,000/-), Ami Udeshi (Rs. 3,24,000/-), Ranajit Sen HUF (Rs. 2,64,000/-) and Sushanta Kumar Pramanik HUF (Rs. 1,48,500/-). The Ld. AO during the course of assessment proceedings asked the assessee to justify such commission payment along-with details of services rendered in view of section 40A(2)(b) of the Act. In response thereto, the assessee vide letter dated 22.11.2016 furnished details of services rendered, which were towards commission for collection of old and doubtful debts, sales promotion, commission for loan syndication through SIDBI. The Ld. AO however rejected the assessee’s claim by holding that no documentary evidence was furnished in support of recovery of outstanding debt, no details of sales promotion actually materializing has been furnished etc. Accordingly, the Ld. AO disallowed assessee’s claim of commission of Rs. 7,36,500/-. The assessee preferred appeal before CIT(A), in which the assessee obtained part relief in respect of two parties. However, in respect of payment made to Ranajit Sen HUF (Rs. 2,64,000/-sales promotion) and Sushanta Pramanik HUF (Rs. 1,48,500/- Sales promotion), the Ld. CIT(A) held that the assessee has not been able to demonstrate how family members of both these HUF are technically qualified to promote the techno-commercial activities of the family business. Secondly, CIT(A) held that the assessee has failed to furnish documentary evidences in respect of its claim of sales affected by receipt of the commission and thirdly, since the HUF’s are not assessed at the maximum marginal rates for tax purposes, this is a ploy by the assessee to reduce incidence of tax. Accordingly, Ld. CIT(A) allowed part relief to the assessee and confirmed the addition in respect of payment to these two parties amounting to Rs. 4,12,500/- u/s 40A(2)(b) of the Act.

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 14– 5. We have heard rival contentions and perused the order of ITAT in assessee’s own case for immediately preceding year i.e. A.Y. 2013-14. We note that in the immediately preceding year ITAT Ahmedabad deleted the disallowance of commission u/s.40A(2)(b) of Act the with the following observations. “10. Heard both the sides and perused the material on record. During the course of assessment, the Assessing Officer has disallowed the expenditure incurred on payment of commission to persons specified u/s. 40A(2)(b) stating that assessee has failed to establish the genuineness of the expenditure. On perusal of the material on record, it is observed that during the course of assessment, the assessee has explained the specific services rendered by the parties to whom the commission was paid along with the detail of their expenses and TDS on the transaction of commission payment. We have also gone through the different pages of the paper book pertaining to the details of commission expenditure furnished by the assessee. In the paper book submitted, the assessee placed copies of invoices raised by the commission agent, along with ledger account, acknowledgement of income tax return for A.Y. 2013-14. The assessee has also enclosed the copies of I.T. returns filed by these parties showing the amount of commission earned in their return of income. It is noticed that Assessing Officer has not made any further verification, investigation and examination from the parties to whom the sales were made through the commission agents to disprove the facts reported by the assessee in its submission. The Assessing Officer has not demonstrated any material or information gathered to disprove the genuineness of the expenditure incurred on commission payment of Rs. 6 lacs, therefore, we consider the decision of the ld. CIT(A) to sustain the disallowance is not justified. Therefore, we do not find any merit in the decision of ld. CIT(A) and the appeal of the assessee is allowed.” In our view, since the facts in the immediately preceding year both in respect of the nature of payments i.e. commission paid as well as the parties to whom the payments were made are identical, we accordingly allow the assessee’s appeal and the disallowance on account of commission u/s. 40A(2)(b) is hereby deleted.”

Ground Nos. 9 to 13: Depreciation on Electrical Installation 20. The brief facts of the case are that the Assessing Officer made a disallowance of Rs. 5,54,435/- being excess depreciation on electric installation, as the Assessing Officer was of the view that electrical installations are liable to &1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 15– be included under the head “Furniture & Fittings” and hence depreciation on the same is eligible @ 10%, as against the claim of 15% depreciation by the assessee by treating such electrical installation as part of “Plant and Machinery”.

“During the course of assessment proceedings, it was noticed by the Assessing Officer that depreciation on electrical installation @ 15% was claimed by the assessee as Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 16– against the rate of 10% specifically provided for electrical fittings. In this regard, it was explained by the assessee that the electrical installation being integral part of plant and machinery was eligible for depreciation @ 15% which is applicable to plant and machinery. This explanation of the assessee was not found tenable by the Assessing Officer and he restricted the claim of the assessee for depreciation on electrical installation at 10% instead of 15% claimed by the assessee which resulted in addition of Rs.12,52,745/-. On appeal, the learned CIT(A) confirmed the addition made by the Assessing Officer on this issue following the appellate order of his learned predecessor in assessee’s own case for AY 2012-13.

(A.Y. 2016-17) 28. The assessee has raised the following additional grounds of appeal:

“Ex-Parte Order: 1) The learned Commissioner of Income Tax (Appeals), National Faceless Appeal Center, Delhi ("NFAC") ("the CIT(A)") erred in fact and in law in passing the order ex-parte.

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 17–

2) The learned CIT(A) has erred in law and in fact in passing order under section 250 of the Act without granting opportunity of virtual hearing as provided in Clause 12(3) of Faceless Appeal Scheme 2021. Without prejudice to the above: Weighted deduction of science research expenditure on in-house R&D facility 3) The learned CIT(A) has erred in law and in fact in restricting the claim of weighted deduction u/s 35(2AB) of the Act quantified by the Department of Scientific and industrial research, Government of India ("DS1R") in Form 3CL despite of the fact that requirement of quantification in Form 3CL under Rule 6(7A)(b) of the Rules was introduced by the Income Tax (tenth Amendment) Rules, 2016 with effect from 01.07.2016 and hence, it is applicable from AY 2017-18 onwards only. 4) The learned CIT(A) has erred in law and in fact in making the impugned disallowance by not fully considering the submission filed by the Appellant. 5) The learned CIT(A) has erred in law and in fact in not allowing the weighted deduction amounting to the tune of Rs. 37,49,019 based on Form 3CL issued by DS1R ITR despite of the fact that the identical issue is already been decided by the Hon'ble ITAT in Appellant's own case for the AY AY 2013-14 and AY 2014-15. Depreciation on electrical installation 6) The learned CIT(A) has erred in law and in fact in confirming the action of the learned Asst. Commissioner of Income Tax, Circle 1(1)(2), Ahmedabad ("the AO") in making disallowance of the depreciation of Rs. 4,98,971/- claimed on electrical installation by holding electrical installation as electrical fittings. 7) The learned CIT(A) has erred in law and in fact in confirming the action of learned AO in restricting the rate of depreciation on electrical Installations @ 10% despite the fact that same is eligible for depreciation @ 15%. 8) The learned CIT(A) has erred in law and in fact in not appreciating the fact that the "Electrical Installations" were closely and intrinsically forming part of the "Plant and Machinery" and therefore eligible for depreciation as part of P&M only. The learned AO and CIT(A) both therefore were not right in treating them as "Furniture and fittings". 9) The learned CIT(A) has erred in law and in fact in not allowing the claim of the depreciation on electric installation as P&M despite of the fact that the Hon'ble ITAT in the Appellant's own case for AY 2011-12 on identical issue has allowed depreciation on electrical items as - electrical installation at the rate of 15%. Your appellant craves the right to add to or alter, amend, substitute, delete or modify all or any of the above grounds of appeal.”

&1585/Ahd/2024 Crest Speciality Resins Pvt. Ltd. vs. ACIT (Now DCIT) Asst. Years –2015-16 & 2016-17 - 18–

Sd/- Sd/- (ANNAPURNA GUPTA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 15/05/2025 TANMAY, Sr. PS TRUE COPY आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��थ� / The Respondent. 3. संबंिधत आयकर आयु� / Concerned CIT 4. आयकर आयु�(अपील) / The CIT(A)- 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad गाड� फाईल / Guard file. 6. आदेशानुसार/ BY ORDER,