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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by assessee is against order of CIT(A)-1, Pune, dated 23.09.2016 relating to assessment year 2011-12 against order passed under section 143(3) of the Income-tax Act, 1961 (in short ‘the Act’).
The assessee has raised the following grounds of appeal:- 1.1 The learned Commissioner of Income Tax (Appeals) - 1, Pune erred in confirming the disallowance u/s 14A of Rs.21,58,119/-, by applying Rule 8D over and above disallowance of Rs.39,76,231/- already offered by the Appellant in its tax return.
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1.2 The learned Commissioner of Income Tax (Appeals) - 1, Pune, failed to appreciate that the appellant had on its own, disallowed expenses on reasonable basis u/s 14A in the return of income and the learned Assessing Officer did not give any reason as to why he was not satisfied with reasonableness of the above disallowance and accordingly, the additional disallowance was not warranted. 1.3 The learned Commissioner of Income Tax (Appeals) - 1, Pune, failed to appreciate that the investment in the shares of the group companies was made long back and there was no expenditure incurred in earning dividend from those companies. The learned Commissioner of Income Tax (Appeals) - 1, Pune, further failed to appreciate that the above investments in the group concerns were strategic investments which did not require regular monitoring and therefore, there was no expenditure incurred to earn any income from these investments. 1.4 Without prejudice to ground nos.1 & 3 above, the learned Commissioner of Income Tax (Appeals) - 1, Pune, erred in not directing the Assessing Officer to exclude the investments which had not actually given any tax free dividend income during the relevant previous year for the purposes of working out disallowance under Rule 8D(iii). 1.5 The learned Commissioner of Income Tax (Appeals) - 1, Pune, failed to appreciate the fact that on the basis of the similar facts and circumstances in case of the Appellant Company in the context of disallowance of expenses u/s. 14A, in earlier years, the adhoc disallowances made by the learned assessing officer were deleted by the learned CIT (A) and /or ITAT, Pune. 2.1 The learned Commissioner of Income Tax (Appeals) - 1, Pune erred in confirming the disallowance of weighted deduction of expenditure incurred on in-house research & development activities u/s. 35(2AB) of the Income Tax Act 1961 to the extent of Rs.18,42,000/- relying on the approval granted by the DSIR. 2.2 He erred in not appreciating that the DSIR had not provided any details or reasoning for such rejection of the approval and therefore it was incorrect and against the principles of natural justice to rely on the approval of the DSIR for the purposes of granting deduction u/s. 35(2AB). 2.3 The learned Commissioner of Income Tax (Appeals) - 1, Pune erred in not appreciating that the provisions of Section 35(2AB) did not provide for DSIR approval to the claim of R & D expenses by the assessee for the purposes of allowing weighted deduction and there was no provision in the Income Tax Act which enabled the Assessing officer to disallow such weighted deduction based on such DSIR approval. 2.4 The learned Commissioner of Income Tax (Appeals) - 1, Pune erred in not appreciating that the DSIR was a competent authority only to approve the in-house R & D facility u/s. 35(2AB) and to decide whether and to what extent an activity constitutes scientific research u/s. 35(3) of the Income Tax Act 1961. The DSIR had no authority to approve or reject the expenses for the purposes of deduction u/s. 35(2AB) on an annual basis post approval of the in-house R & D Unit. 2.5 The learned Commissioner of Income Tax (Appeals) - 1 Pune erred in not appreciating that the Appellant Company had fulfilled all the Prescribed conditions of Section 35(2AB) and therefore there was no
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reason to disallow any part of R & D expenses and weighted deduction claimed by the Appellant company. He erred in not relying on the ratio of various judgments relied upon by the Appellant Company. 2.6 Without prejudice to the above, the learned Commissioner of Income Tax (Appeals) – 1, Pune erred in not making a reference to the DSIR as per the provisions of Section 35(3) before confirming the disallowance of the deduction u/s. 35(2AB) to the extent of Rs.18,42,000/-.
The grounds of appeal No.1 to 1.5 raised by assessee are against disallowance made under section 14A of the Act r.w.s. 8D of the Income Tax Rules, 1962 (in short ‘the Rules’).
Briefly, in the facts of the case, case of assessee was picked up for scrutiny. The Assessing Officer noted that the assessee had earned dividend income of ₹ 14,27,08,716/-, which was claimed as exempt under section 10(35) of the Act. The Assessing Officer thus, recorded satisfaction as to why the provisions of section 14A of the Act should not be applied after taking note of the fact that the assessee had disallowed sum of ₹ 39,76,231/-. The assessee submitted detailed working of disallowance made suo motu. It may be noted that no disallowance has been made under Rule 8D(2)(ii) of the Income Tax Rules, 1962 (in short ‘the Rules’) as the assessee claimed that no interest cost was incurred in relation to exempt dividend income. The assessee also explained that no separate staff was employed for the management of investments and also claimed that no additional / separate administration cost was required for earning such income. The Assessing Officer applying provisions of rule 8D(2)(iii) of the Rules computed the disallowance at ₹ 61,34,350/-. Since the assessee had suo motu disallowed ₹ 39,76,231/-, differential amount of ₹ 21,58,119/- was added back to the total income of assessee.
The CIT(A) upheld the same.
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The assessee is in appeal against the said disallowance.
The learned Authorized Representative for the assessee stressed that since the assessee had already made suo motu disallowance, there is no merit in making further disallowance. He stressed that disallowance made is against law.
The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below.
The limited issue which arises vide grounds of appeal No.1 to 1.5 is against disallowance made under section 14A of the Act read with Rule 8D(2)(iii) of the Rules. Admittedly, no disallowance has been made on account of interest expenditure by Assessing Officer, accepting the plea of assessee that no interest cost was attributable to tax free investments made by assessee. However, the Assessing Officer worked out disallowance under Rule 8D(2)(iii) of the Rules after recording satisfaction under section 14A(2) of the Act. The assessee on its own motion had disallowed ₹ 39,76,231/-, so it is not the case where no disallowance is to be made in the hands of assessee. The provisions of Rule 8D(2)(iii) of the Rules are clearly applicable to the year under appeal and once the same are attracted, then the disallowance, if any, has to be computed as per the said Rule. The Assessing Officer has computed the said disallowance at ₹ 61,34,350/- and disallowed differential amount of ₹ 21,58,119/-. We find no merit in the plea of assessee in this regard and dismissing the same, we uphold the disallowance made by Assessing Officer. Thus, grounds of appeal No.1 to 1.5 raised by assessee are dismissed.
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Now, coming to grounds of appeal No.2.1 to 2.5, wherein the assessee is in appeal against the disallowance of weighted deduction of expenditure incurred on in-house research & development activities under section 35(2AB) of the Act to the extent of ₹ 18,42,000/-.
Brief facts relating to the issue are that the assessee had claimed weighted deduction of ₹ 15,04,89,940/- under section 35(2AB) of the Act in respect of its in-house R&D facility as approved by the Department of Scientific and Industrial Research (DSIR). The assessee was asked to file details of expenditure incurred and also the approval given by DSIR. The assessee filed the requisite details. The Assessing Officer noted that DSIR had not approved expenditure of ₹ 18.42 lakhs out of total expenditure claimed by assessee company. The assessee was thus, show caused as to why proportionate deduction under section 35(2AB) of the Act should not be disallowed i.e. to the extent of amount not approved by DSIR. In reply, the assessee claimed that it had not received any clarification from DSIR and the reasons for rejecting approval to a part of expenses incurred, was also not clear. The assessee also pointed out that there was no provision in the Income Tax Act, which provided for such approval for yearly expenditure by DSIR. The assessee stressed that once the facility is approved by DSIR, no further reference is to be made to DSIR for the purpose of claiming deduction under section 35(2AB) of the Act. The Assessing Officer rejected the plea of assessee and disallowed proportionate weighted deduction claimed under section 35(2AB) of the Act at ₹ 18,42,000/-.
The CIT(A) upheld the order of Assessing Officer.
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The assessee is in appeal against the said disallowance.
The learned Authorized Representative for the assessee pointed out that the issue stands covered in favour of assessee by the order of Pune Bench of Tribunal in the case of Cummins India Ltd. Vs. DCIT (2018) 96 taxmann.com 576 (Pune – Trib.). He pointed out that facility has been approved by DSIR and certificate in Form No.3CL has been issued by DSIR independently. Then, thereafter there is no role of DSIR and weighted deduction claimed by assessee under section 35(2AB) of the Act could not be curtailed.
The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below.
We have heard the rival contentions and perused the record. The issue before us is vis-à-vis weighted deduction claimed under section 35(2AB) of the Act. The assessee had recognized R&D facility, for which approval was given by DSIR. The assessee during the year under consideration had incurred expenditure of ₹ 15.05 crores (approx.), on which the assessee had claimed weighted deduction under section 35(2AB) of the Act. However, the said weighted deduction claimed under section 35(2AB) of the Act was curtailed by Assessing Officer by ₹ 18,42,000/- on the ground that DSIR had not approved the expenditure. The issue which arises is whether under the provisions of the Act, DSIR had any authority during the year under appeal to approve or dis- approve the expenditure incurred by assessee on R&D facility especially once the said R&D facility has been recognized by DSIR.
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We find that similar issue arose before the Pune Bench of Tribunal in the case of Cummins India Ltd. Vs. DCIT (supra) and the Tribunal noted the provisions of section 35(2AB) of the Act, the approval given by DSIR in Form No.3CL and consequent to the approval given, whether DSIR had any role in approving the expenditure claimed by assessee. The relevant findings of Tribunal are vide paras 38 to 46, which read as under:- “38. We have heard the rival contentions and perused the record. The issue which arises in the present appeal is against the claim of deduction under section 35(2AB) of the Act i.e. expenditure incurred on Research & Development activity. For computation of business income under section 35 of the Act, expenditure on scientific research is to be allowed on fulfillment of certain conditions which are enlisted in the said section. Under various sub- sections of section 35 of the Act, the conditions and the allowability of expenditure vary. Sub-section (1) to section 35 of the Act deals with expenditure on scientific research, not being in the nature of capital expenditure, is to be allowed to research association, university, college or other institution; for which an application in the prescribed form and manner is to be made to the Central Government for the purpose of grant of approval or continuation thereto. Before granting the approval, the prescribed authority has to satisfy itself about the genuineness of activities and make enquiries in this regard. Under sub-section (2B) to section 35 of the Act, a company engaged in the specified business as laid there on, if it incurs expenditure on scientific research or in-house Research & Development facility also needs to be approved by the prescribed authority, is entitled to deduction, provided the same is approved by the prescribed authority. 39. Now, coming to sub-section (2AA) to section 35 of the Act, it talks about granting of approval by the prescribed authority but the approval to the expenditure being incurred is missing under the said section. Similar is the position in sub-section (2A). Further in sub-section (2AB), it is provided that facility has to be approved by the prescribed authority, then there shall be allowed deduction of expenditure incurred whether 100%, 150% or 200% as prescribed from time to time. Clause (2) to section 35 of the Act provides that no deduction shall be allowed in respect of expenditure mentioned in clause (1) under any provisions of the Act. Clause (3) further lays down that no company shall be entitled for deduction under clause (1) unless it enters into agreement with prescribed authority for co-operation in such R & D facility. The Finance Act, 2015 w.e.f. 01.04.2016 has substituted and provided that facility has to fulfill such condition with regard to maintenance of accounts and audit thereof and for audit of accounts maintained for that facility. 40. Under Rule 6 of Income Tax Rules, 1962 (in short „the Rules), the prescribed authority for expenditure on scientific research under various sub- clauses has been identified. As per Rule 6(1B) of the Rules for the purpose of sub-section 2AB of section 35 of the Act, the prescribed authority shall be the Secretary, Department of Scientific and Industrial Research i.e. DSIR. Under sub-rule (4), application for obtaining approval under section 35(2AB) of the Act is to be made in form No.3CK. Under sub-rule (5A) of rule 6 of the Rules, the prescribed authority shall, if satisfied that the conditions provided in the rule and in sub-section (2AB) being fulfilled, pass an order in writing in form No.3CM. The proviso however lays down that reasonable opportunity of being heard is to be granted to the company before rejecting an application. So, the
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application has to be made under sub-rule (4) in form No.3CK and the prescribed authority has to pass an order in writing in form No.3CM. Sub-rule (7A) provides that the approval of expenditure under sub-section (2AB) of section 35 of the Act, shall be subject to the conditions that the facilities do not relate purely to market research, sales promotion, etc. Clause (b) to sub-rule (7A) at the relevant time provided that the prescribed authority shall submit its report in relation to the approval of in-house R & D facility in form No.3CL to the DG (Income-tax Exemption) within sixty days of its granting approval. Under clause (c), the company at the relevant time had to maintain separate accounts for each approved facility, which had to be audited annually. Clause (b) to sub- rule (7A) has been substituted by IT (Tenth Amendment) Rules, 2016 w.e.f. 01.07.2016, under which the prescribed authority has to furnish electronically its report (i) in relation to approval of in-house R & D facility in part A of form No.3CL and (ii) quantifying the expenditure incurred on in-house R & D facility by the company during the previous year and eligible for weighted deduction under sub-section 2AB of section 35 of the Act in part B of form No.3CL. In other words the quantification of expenditure has been prescribed vide IT (Tenth Amendment) Rules, 2016 w.e.f. 01.07.2016. Prior to this amendment, no such power was with DSIR i.e. after approval of facility. 41. Under the amended provisions, beside maintaining separate accounts of R & D facility, copy of audited accounts have to be submitted to the prescribed authority. These amendments to rules 6 and 7a are w.e.f. 01.07.2016 i.e. under the amended rules, the prescribed authority as in part A give approval of the facility and in part B quantify the expenditure eligible for deduction under section 35(2AB) of the Act. 42. The issue which is raised before us relates to pre-amended provisions and question is where the facility has been approved by the prescribed authority, can the deduction be denied to the assessee under section 35(2AB) of the Act for non issue of form No.3CL by the said prescribed authority or the power is with the Assessing Officer to look into the nature of expenditure to be allowed as weighted deduction under section 35(2AB) of the Act. The first issue which arises is the recognition of facility by the prescribed authority as provided in section 35(2AB) of the Act. 43. The Hon‟ble High Court of Gujarat in CIT Vs. Claris Lifesciences Ltd. (2010) 326 ITR 251 (Guj) have held that weighted deduction is to be allowed under section 35(2AB) of the Act after the establishment of facility. However, section does not mention any cutoff date or particular date for eligibility to claim deduction. The Hon‟ble High Court held as under:- “8. The Tribunal has considered the submissions made on behalf of the assessee and took the view that section speaks of: (i) development of facility; (ii) incurring of expenditure by the assessee for development of such facility; (iii) approval of the facility by the prescribed authority, which is DSIR; and (iv) allowance of weighted deduction on the expenditure so incurred by the assessee. 9. The provisions nowhere suggest or imply that R&D facility is to be approved from a particular date and, in other words, it is nowhere suggested that date of approval only will be cut-off date for eligibility of
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weighted deduction on the expenses incurred from that date onwards. A plain reading clearly manifests that the assessee has to develop facility, which presupposes incurring expenditure in this behalf, application to the prescribed authority, who after following proper procedure will approve the facility or otherwise and the assessee will be entitled to weighted deduction of any and all expenditure so incurred. The Tribunal has, therefore, come to the conclusion that on plain reading of section itself, the assessee is entitled to weighted deduction on expenditure so incurred by the assessee for development of facility. The Tribunal has also considered r. 6(5A) and Form No. 3CM and come to the conclusion that a plain and harmonious reading of Rule and Form clearly suggests that once facility is approved, the entire expenditure so incurred on development of R&D facility has to be allowed for weighted deduction as provided by s. 35(2AB). The Tribunal has also considered the legislative intention behind above enactment and observed that to boost up R&D facility in India, the legislature has provided this provision to encourage the development of the facility by providing deduction of weighted expenditure. Since what is stated to be promoted was development of facility, intention of the legislature by making above amendment is very clear that the entire expenditure incurred by the assessee on development of facility, if approved, has to be allowed for the purpose of weighted deduction. 10. We are in full agreement with the reasoning given by the Tribunal and we are of the view that there is no scope for any other interpretation and since the approval is granted during the previous year relevant to the assessment year in question, we are of the view that the assessee is entitled to claim weighted deduction in respect of the entire expenditure incurred under s. 35(2AB) of the Act by the assessee.” 44. The Hon‟ble High Court of Delhi in CIT Vs. Sandan Vikas (India) Ltd. (2011) 335 ITR 117 (Del) on similar issue of weighted deduction under section 35(2AB) of the Act held that the condition precedent was the certificate from DSIR, but the date of certificate was not important, where the objective was to encourage research and development by the business enterprises in India. In the facts before the Hon‟ble High Court of Delhi, the assessee had approached DSIR vide application dated 10.01.2015. The DSIR vide letter dated 23.02.2006 granted recognition to in-house research and development facility of assessee. Further, vide letter dated 18.09.2006, DSIR granted approval for the expenses incurred by the company on in-house research and development facility in the prescribed form No.3CM. The Assessing Officer in that case refused to accord the benefit of aforesaid provision on the ground that recognition and approval was given by DSIR in the next assessment year. The Tribunal allowed the claim of assessee relying on the decision of the Hon‟ble High Court of Gujarat in CIT Vs. Claris Lifesciences Ltd. (supra). The Hon‟ble High Court of Delhi taking note of the decision of the Hon‟ble High Court of Gujarat observed that it has been held that cutoff date mentioned in the certificate issued by DSIR would be of no relevance where once the certificate was issued by DSIR, then that would be sufficient to hold that the assessee had fulfilled the conditions laid down in the aforesaid provisions. 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
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Act but the provisions of the Act do not prescribe any methodology of approval to be granted by the prescribed authority vis-à-vis expenditure from year to year. The amendment brought in by the IT (Tenth Amendment) Rules w.e.f. 01.07.2016, wherein separate part has been inserted for certifying the amount of expenditure from year to year and the amended form No.3CL thus, lays down the procedure to be followed by the prescribed authority. Prior to the aforesaid amendment in 2016, no such procedure / methodology was prescribed. In the absence of the same, there is no merit in the order of Assessing Officer in curtailing the expenditure and consequent weighted deduction claim under section 35(2AB) of the Act on the surmise that prescribed authority has only approved part of expenditure in form No.3CL. We find no merit in the said order of authorities below. 46. The Courts have held that for deduction under section 35(2AB) of the Act, first step was the recognition of facility by the prescribed authority and entering an agreement between the facility and the prescribed authority. Once such an agreement has been executed, under which recognition has been given to the facility, then thereafter the role of Assessing Officer is to look into and allow the expenditure incurred on in-house R&D facility as weighted deduction under section 35(2AB) of the Act. Accordingly, we hold so. Thus, we reverse the order of Assessing Officer in curtailing the deduction claimed under section 35(2AB) of the Act by ₹ 6,75,000/-. Thus, grounds of appeal No.10.1, 10.2 and 10.3 are allowed.”
The issue arising before us is similar to the issue in Cummins India Ltd. Vs. DCIT (supra) and following the same parity of reasoning, we hold that where facility has been recognized by the prescribed authority and agreement has been entered into between facility and the prescribed authority and thereafter the role of Assessing Officer is to look into and allow the expenditure incurred on in-house R&D facility as weighted deduction under section 35(2AB) of the Act. Accordingly, we find no merit in the orders of authorities below in restricting weighted deduction claimed under section 35(2AB) of the Act by ₹ 18,42,000/- on the ground that DSIR had not approved the said expenditure. It may be pointed out herein itself that reasons for not approving expenditure have also not been made available to the assessee. Consequently, the same cannot be basis for curtailing deduction claimed under section 35(2AB) of the Act. The Assessing Officer is thus, directed to allow weighted deduction under section 35(2AB) of the Act at ₹ 18,42,000/-. The grounds of appeal No.2.1 to 2.5 are thus, allowed. The issue in ground of appeal No.2.6 is without prejudice
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basis and the same does not stand. The grounds of appeal raised by assessee are thus, partly allowed.
In the result, the appeal of assessee is partly allowed.
Order pronounced on this 14th day of November, 2018.
Sd/- Sd/- (ANIL CHATURVEDI) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 14th November, 2018. GCVSR आदेश की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; प्रत्यथी / The Respondent; 2. आयकर आयुक्त(अऩीऱ) / The CIT(A)-1, Pune; 3. 4. The Pr.CIT-1, Pune; ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “फी” / DR 5. ‘B’, ITAT, Pune; 6. गार्ड पाईऱ / Guard file. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune