Commissioner of Income Tax-II vs. M/s.Kensoft (India) Pvt.Ltd.,

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 29TH DAY OF JULY 2021 / 7TH SRAVANA, 1943 ITA NO. 184 OF 2013 AGAINST THE ORDER IN ITA 379/2009 OF I.T.A.TRIBUNAL,COCHIN BENCH, ERNAKULAM APPELLANT/S: THE COMMISSIONER OF INCOME TAX-I COCHIN. BY ADVS. SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT RESPONDENT/S: M/S.APOLLO TYRES LTD 6TH FLOOR, CHERUPUSHPAM BUILDINGS, SHANMUGHAM ROAD, COCHIN-682 031 BY ADVS. SRI.V.ABRAHAM MARKOS SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ABRAHAM VARGHESE THARAKAN SRI.BINU MATHEW SRI.JOSEPH MARKOSE SR. SRI.TOM THOMAS KAKKUZHIYIL THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

I.T.A. No.184/2013 -2- J U D G M E N T S.V. Bhatti, J. Heard learned Standing Counsel Mr. Christopher Abraham and learned Senior Counsel Mr. Joseph Markos for parties. 2. The Commissioner of Income Tax/Revenue is the appellant. M/s. Apollo Tyres Ltd., Kochi/Assessee is the respondent. The subject appeal is at the instance of Revenue from the order of Income Tax Appellate Tribunal (for short 'the Tribunal'), Cochin Bench in ITA No.379/Coch/2009 dated 21.12.2012. The Tribunal, through the order under appeal, confirmed the order of CIT (Appeals) by holding that the assessee is entitled to claim deduction under section 80-IA of the Income Tax Act, 1961 (for short ‘the Act’) for the DG Power

I.T.A. No.184/2013 -3- Generation Units I and II as coming within the meaning of ‘undertaking’. The substantial questions of law raised are as follows: “i. Whether, on the facts and in the circumstances of the case the Tribunal is right in law and fact in holding that DG Power Generation Units I and II constituted an ‘undertaking’ under Section 80-IA of the Income Tax Act? ii Whether DG Power Generation Units I and II are entitled to the benefit of Section 80-IA of the Income Tax Act?” 3. The Revenue filed ITA No.69/2011 and ITA No.70/2011 raising the very same substantial questions as raised in the instant appeal. ITA Nos. 69 and 70/2011 are filed for the Assessment Year 2002-03. On 27.02.2019 the appeals filed by the Revenue were dismissed and answered the question in favour of the assessee and against the Revneue.

I.T.A. No.184/2013 -4- 4. By following the judgment of this Court dated 27.02.2019 in ITA Nos.69 and 70/2011, the substantial questions framed in the instant case are answered in favour of the assessee and against the Revenue. The appeal stands dismissed, accordingly. No order as to costs. Sd/- S.V.BHATTI JUDGE Sd/- BECHU KURIAN THOMAS JUDGE jjj

I.T.A. No.184/2013 -5- APPENDIX OF ITA 184/2013 PETITIONER ANNEXURE ANNEXURE A COPY OF THE ASSESSMENT ORDER U/S 143(3) RWS 147 DATED 12.12.2008 PASSED BY THE ASSESSING OFFICER FOR A6 2004-05 ANNEXURE B COPY OF THE CIT (A)S ORDER NO 24,25,26 & 27/R-/E/CIT-11/08-09 DATED 30.3.2009 ANNEXURE C COPY OF THE ITATS ORDER ITA NO 379/COCH/2009 DATED 21.12.2012 FOR ASSESSMENT YEAR 2004-05.