THE PRINCIPAL COMMISSIONER OF INCOME TAX, KOCHI -I vs. M/S.APOLLO TYRES LTD

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 31ST DAY OF AUGUST 2021 / 9TH BHADRA, 1943 ITA NO. 43 OF 2017 AGAINST THE ORDER IN ITA No.130/Coch/2016 OF I.T.A.TRIBUNAL,COCHIN BENCH, ERNAKULAM APPELLANT/APPELLANT: THE PRINCIPAL COMMISSIONER OF INCOME TAX, KOCHI -I CENTRAL REVENUE BUILDING,I.S.PRESS ROAD, KOCHI 682018. BY ADVS. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT RESPONDENT/RESPONDENT: M/S.APOLLO TYRES LTD 6TH FLOOR CHERUPUXHPAM BUILDING,SHANMUGHAM ROAD, ERNAKULAM-682031,PRESENT ADDRESS 3RD FLOOR, AREEKAL MANSION,NEAR MANORAMA JUNCTION,PANAMPILLY NAGAR, KOCHI. 682036. BY ADVS. SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.P.G.CHANDAPILLAI ABRAHAM SHRI.VIPIN ANTO H.M. SHRI.ALEXANDER JOSEPH MARKOS SHRI.SHARAD JOSEPH KODANTHARA THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ITA No.43 of 2017 2 JUDGMENT ITA No.43 of 2017 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 IT(TP)A No.130/Coch/2016 of ITAT Cochin Bench. The issues relate to the return filed by the assessee for the assessment year 2011-12. The substantial questions of law raised for our consideration are as follows: 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 is nto the above finding against law and perverse? 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. 3. "Whether on the facts and in the circumstances of the case, is the Hon'ble ITAT right in law and fact in

ITA No.43 of 2017 3 holding that DG Power Generation Units constituted an "undertaking" for the purpose of deduction u/s 80- IA of the Income Tax Act, 1961? 3. The questions of law raised are similar to the questions of law 1 and 3 raised in ITA No.40 of 2017. So following the reasoning in ITA No.40 of 2017, the questions of law are answered in favour of the assessee and against the revenue. Substantial Question No.2 An identical question raised by the assessee for the assessment year 2010-2011 was considered by this Court in IT Appeal No.40 of 2017. The view taken by the Tribunal was accepted by adopting the same reasoning. The question is answered in favour of assessee and against the revenue. For the above discussion, IT Appeal No.43/2017 is dismissed. Sd/- S.V.BHATTI JUDGE sd/- VIJU ABRAHAM JUDGE css/

ITA No.43 of 2017 4 APPENDIX OF ITA 43/2017 PETITIONER ANNEXURE ANNEXURE A COPY OF THE ORDER U/S.92CA(3) DATED 29/01/2014 FOR AY 2010-11 PASSED BY THE JDIT, TRANSFER PRICING OFFICER-1, KOCHI. ANNEXURE B COPY OF THE DRAFT ASSESSMENT ORDER U/S. 143(3) R.W.S. 144C DATED 31/03/2015 FOR AY 2011-12. ANNEXURE C COPY OF ORDER U/S. 144C(5) DATED 23/12/2015 CONTAINING DIRECTIONS ISSUED BY THE DISPUTE RESOLUTION PANEL, BANGALORE IN F.NO. 171/DRP- 2/BNG/2015-16. ANNEXURE D COPY OF FINAL ASSESSMENT U/S. 143(3) R.W.S. 144C DATED 23/02/2016 FOR AY 2011-12. ANNEXURE E COPY OF THE APPELLATE ORDER OF THE ITAT COCHIN BENCH IN ITA NO.130/COCH/2016 DATED 10/01/2017 (COMBINED ORDER IN ITA NO.223/COCH/2015 (AY 2010-11), IT(TP)A NO.189/COCH/2016(AY 2011-12), ITA NO.222/COCH.2016 (AY 2010-11), ITA NO.257/COCH/2015 (AY 2010-11) AND IT (TP)A NO.130/COCH/2016 (AY 2011-12).