GENUS POWER INFRASTRUCTURES LIMITTED,NOIDA V. PR. COMMISSIONER OF INCOME TAX(CENTERAL), LUCKNOW

ITA 74/LKW/2022

AI Insights

The case involves Genus Power Infrastructures Ltd, which appealed against the order of the Principal Commissioner of Income Tax (Central), Lucknow, setting aside the assessment order for the assessment year 2016-17. The PCIT had invoked section 263 of the Income Tax Act, 1961, claiming that the original assessment was erroneous and prejudicial to the interest of the revenue, particularly concerning the deduction claimed under section 35(2AB) for scientific research and development. The Tribunal examined the submissions and evidence presented, including the compliance with procedural requirements for claiming deductions under section 35(2AB), and found that the original assessment had been conducted properly with adequate inquiry by the Assessing Officer.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 23970 (ITAT-LUCKNOW)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Other Referred Cases: Infosys Technologies Ltd vs JCIT, PCIT vs Universal Music India Pvt Ltd, ACIT vs Advance Enzyme Technologies Ltd, CIT-IV vs Gupta Spining Mills Pvt Ltd, Malabar Industrial Corporation Limited vs CIT, CIT vs Sunbeam Auto Limited, CIT vs Anil Kumar Sharma, CIT vs Vikas Polymers, Hari Iron Trading Company vs CIT, CIT vs Hindustan Coca-Cola Beverages (P) Ltd, CIT vs International Travel House Lid, CIT vs DLF Power Limited, CIT vs Eicher Limited, CIT vs Ashish Rajput, CIT vs Rohit Anand, CIT vs Gopal Purohit, CIT vs PNB Finance and Industries Limited, DCIT vs Famy Care Ltd, Indian Tonner and Developers Ltd vs ACIT, Advance Engine Technologies Ltd vs ACIT Circle-1, CIT vs Claris Lifescience Ltd, CIT vs Maruti Suzuki India Pvt. Ltd., CIT vs TVS Electronics Ltd
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAMITA S. PANDEY
• Assessee Lawyers: PRAVEEN KUMAR
• Keywords: Set aside; Revenue expenditure; Depreciation; Capital expenditure; Capital Gains; Assessment record; Competent authority; Revision of order
• Section: 143(3); 142(1); 263; 192; 13; 2

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “A”, LUCKNOW BEFORE SHRI KUL BHARAT, VICE PRESIDENT AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.74/LKW/2022 (Assessment Year: 2016-17) Genus Power Infrastructures Ltd Registered Office – G-14, Sector-63, Noida-201307. v. Pr Commissioner of Income Tax (Central) Aayakar Bhawan, 5 Ashok Marg, Lucknow-226001. PAN:AACCG1218P (Appellant) (Respondent) Appellant by: Shri Praveen Kumar, Adv. Respondent by: Smt Namita S. Pandey, CIT(DR) O R D E R PER ANADEE NATH MISSHRA, A.M.: (A) This is an appeal preferred by the assessee against the order of the Ld. Principal Commissioner of Income Tax (Central) [hereinafter referred to as the “PCIT”], Lucknow dated 21.03.2022 for assessment year 2016-17 passed under section 263 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”). The grounds of appeal of the assessee are as under: - “1. That the Ld. PCIT has erred in Jaw as well on facts by setting aside the order dated 07/02/2020 passed u/s 143(3)/144C(3) of the L.T. Act; for passing the order afresh. 2. That the Ld. PCIT has erred in issuing notice u/s 263 of the Act for the reason that he has a different opinion to that of the AO without considering the fact that the Ld. AO has accepted the claim of the assessee for deduction u/s 35(2AB) of the Income Tax Act, by making proper enquiry as well as by taking the form 3CL physically. 3. That the Ld. PCIT has erred in law as well on facts by invoking clause (a) of explanation 2 to section 263 of the Act despite the fact that proper enquiry of the matter has been conducted by the Ld. AO as well as without considering the rule of filing form 3CL that this form was to be filed by the department of Scientific and Industrial Research, not the assessee.” ITA No.74/LKW/2022 Page 2 of 16 (B) In this case, the assessment order dated 07.02.2020 was passed under section 143(3) r.w.s. 144C(3) of the Act. Subsequently, the Ld. PCIT passed the impugned order dated 21.03.2022, under section 263 of the Act, whereby the assessment order dated 07.02.2020 was set aside and the Assessing Officer was directed to pass assessment order, considering the issue raised in the notice under section 263 of the Act. The notice issued under section 263 of the Act Ld. PCIT dated 08.03.2022 is reproduced below for the ease of reference:- “The assessment records for the A.Y. 2016-17 have been called and examined by the undersigned. The undersigned considers that the assessment for the A.Y. 2016-17 , which is completed U/s 143(3) r.w.s. 144C(3) of the Income-tax Act, 1961 on 07.02.2020 at total assessed income of Rs. 50,08,07,363/- is erroneous in so far as it is prejudicial to the interest of the revenue on the following reason: 2. On perusal of the assessment records, it has been noticed that the approval of deduction in the prescribed proforma by the competent authority as per the provisions of Section 35(2AB) of the Income-tax Act, 1961 read with Rule 6 of the Income-tax Rules, 1962 is not found on records. Thus, the requirements of section 35(2AB) of the IT Act, 1961 read with rule 6 of the IT Rules, 1962, which is essential to claim deduction u/s 35(2AB) have not been fulfilled. In view of this, no deduction u/s 35(2AB) of the Income-tax Act, 1961 can be allowed r without the required approval as per the provisions of section 35(2AB) of the Income-tax Act, 1961 read with Rule 6 of the Income-tax Rules, 1962. It is, therefore, a case where a deduction under section 35(2AB) of the Income-tax Act, 1961 read with Rule 6 of the Income tax Rules, 1962 has been allowed without examining the facts of this case by the AO. 3. Thus, during the course of the assessment proceedings, the Assessing Officer while making the assessment order U/s 143(3) r.w.s. 144C(3) of the Income-tax Act, 1961 has not examined/enquired into the details of facts of the case and there is a clear error on application of section 35(2AB) of the IT Act, 1961 read with rule 6 of the IT Rules, 1962. Therefore, the assessment made is erroneous in so far as it is prejudicial to the interest of the revenue as per the provisions of section 263 of the Income-tax Act, 1961. In this regard, a hearing in the matter is fixed on 14.03.2022 at 03:00 PM. You are requested to attend in person or through an authorized representative to submit your written submission, if any, alongwith supporting documents/information in support of the issue involved. If you wish that the revision proceeding be conducted on the basis of your written submission/ representation filed in this office, on or before the said due date, then your personnel attendance is not required. You also have the ITA No.74/LKW/2022 Page 3 of 16 option to file your written submission from the e filing portal on or before the date fixed. Sd/- (Vimalendu Verma) PCIT (Central), Lucknow (B.1) In response, the assessee submitted as under: - “In this regard, Sir, it is humble submitted that during assessment Proceeding, vide notice no. ITBA/AST/F/142(1)/2019-20/1021228949(1) dt. 28.11.2019, the Assessing Officer had already asked to furnish the details of deduction claimed on the account of scientific research along with their documentary evidence (Enclosing the Notice Dt 28.11.2019 for your reference). Assessee Company has already submitted its reply against the above notice on Dated 02.12.2019. We are herewith reproducing the relevant para of our reply for claiming deduction under section 35(2AB): 6, Large deduction claimed u/s 35(2AA), 35(2AB), 35(CCC) & 35(CCD): Please furnish the details of deduction claimed on the account of scientific research along with their documentary evidence. Reply: - The assessee company is having an In house R & D centre which is approved from Department of Scientific and Industrial Research (DSIR). As per Section 35(2AB) of Income Tax Act, 1961, where manufacturing company incurs any expenditure on scientific research (not being expenditure in the nature of cost of land or building) on In-house research and development facility approved by the Department of Science & Industrial Research then deduction of two time of the expenditure incurred is allowable while calculating total taxable income of the Assessee. During the financial year 2015-16 the assessee company has incurred total expenditure which is eligible for deduction u/s 35(2AB) amounted of Rs.1,081.3 Lacs (which includes Capital Expenditure of Rs.95.63 Lacs & Revenue Expenditure Of Rs.985.69 Lacs) on In-house R&D facility out of which DSIR has already allowed Rs.1,046.14 Lacs (deducting Rs.35.18 lacs from revenue expenditure). The DSI has already been submitted its report under Form 3CL to Chief Commissioner Income Tax Act (Exemptions) u/s 35(2AB). The documentary evidence in the form o copy of the Form 3CL (approval of expenses), Form 3CM (approval of in house R & D facility) and recognition letter along with the details of Expenditures submitted to DSIR are enclosed herewith. (Annex - 5) Further, Sir, it is kindly requested that the Assessing officer has again issued show cause relating to claiming deduction u/s 35(2AB) under th- proceedings u/s 154 vide letter no. ITBA/COM/F/17/2021- 22/1037371585(1) DT. 28,11.2021 and once again vide letter no. ITBA/COM/F/17/2021-22/1037785402(1) on dt.14.12.2021 in response to these notices the Assessee Company has already submitted its reply on 11.12.2021 and on 14.12.2024 respectively. We are herewith enclosing that reply for your kind consideration. In view of above submissions and documents, Sir, it is evident that the Ld. Assessing Officer has allowed the exemption u/s 35(2AB) after proper enquiry and discussion and also as per Law. However, again we are ITA No.74/LKW/2022 Page 4 of 16 herewith submitting form SCL and 3CM for the A.Y. 2016+17 for your ready reference. Therefore, we are requesting your good self to kindly drop the above hearing in respect of Revision proceedings u/s 263 of the Income Tax Act, 1961.\" (B.2) The Ld. PCIT, however, was not satisfied and he passed the aforesaid impugned order under section 263 of the Act with the following observations: - “6. In view of the section 35(2AB) read with Rule 6, which is effective from 01.07.2016, my observations are as under: - (a) The form 3CL dated 14.08.2017 so furnished is in old format instead of the new format effective from 01.07.2016. Also, Form 3CL, in new format, should have been furnished electronically as per Rule 6(7A)(b) of the I.T. Rules, 1962. However, required evidences for it being furnished electronically have not been submitted by the assessee. (b) As per Rule 6(7A)(c) of the I.T. Rules, 1962, it is mandatory for the assessee to obtain the requisite audit report in form 3CLA and to furnish it electronically before the due date of filing the return of income. In the instance assessment year, report of the assessing officer concludes that such form 3CLA was not furnished either electronically or before the assessing officer during the course of the assessment proceedings. In view of this the assessee was not eligible for deduction under section 35(2AB) read with Rule 6 but the same has been allowed in the assessment order dated 07.02.2020. 7. Thus, during the course of the assessment proceedings, the Assessing Officer while making the assessment has not examined/enquired into the details of the case and there is a clear error on application of section 35(2AB) of the I.T. Act, 1961 read with Rule 6 of the I.T. Rules, 1962. Therefore, the assessment made is erroneous in so far as it is prejudicial to the interest of the revenue as per the provisions of section 263 of the Income-tax Act, 1961.” (B.3) In the course of appellate proceedings in Income Tax Appellate Tribunal (ITAT), paper book containing the following particulars were filed from the assessee’s side. S.No Description of Documents 1 Written Submission 2 Letter dated 01.04.2014 certificate of Registration from department of Science and Technology 3 Renewal of Recognition vide letter dated 01.04.2014 from Department of Scientific and Industrial Research. 4 Certificate of Registration from Department of Scientific and Industrial Research 5 Certificate dated 24.11.2016 from Auditor for the purpose of Section 35(2AB). Though not filed but full Audit Report was filed which contained full discussion of provision u/s 35(2AB). 6 Letter dated August 16,2017 from DSIR to the assessee for in house R&D facilities. 7 Copy of Form 3CM ITA No.74/LKW/2022 Page 5 of 16 8 Copy of Form 3CL 9 Notice u/s 142(1) dated 28.11.2019 10 Reply dated 12 December 2019 including the detail of 35(2AB) 11 Judgment in the case of Infosys Technologies Ltd vs JCIT order dated 02.06.2005 12 Judgment in the case of PCIT vs Universal Music India Pvt Ltd order dated 19.04.2022. 13 Judgment in the case of ACIT vs Advance Enzyme Technologies Ltd order dated 19.04.2022 14 Judgment in the case of CIT-IV vs Gupta Spining Mills Pvt Ltd order dated 19.04.2022 15 Vakalatnama 16 Notice of hearing u/s 263 dt. 08.03.2022 17 Reply to notice u/s 263 dt 14.03.2022 18 Notice u/s 142(1) by AO dt 28.11.2019 19 Reply to notice u/s 142(1) dt 12.12.2019 20 Order u/s 263 dt 21.03.2022 for AY. 2016-17 21 Filing for Form 3CL dt 15.12.2019 to DSIR 22 Details of Expenditure Incurred 23 Certificate for Audit dt 24.11.2016 24 Approval of In house R & D by DSIR dt 16.08.2017 25 Form No.3CM by DSIR dt 14.08.2017 26 Form No.3CL by DSIR dt 14.08.2017 showing total cost 27 Renewal of recognition tll 31.03.2020 letter dt 07.04.2017 by DSIR 28 Filing of Form 3CLA from Auditor on 28.11.2016 29 Procedure for approval u/s 35(2AB) 30 DCIT vs Famy Care Ltd, ITAT, Mumbai ‘F’ Bench order dated 26.11.2014 31 Indian Tonner and Developers Ltd ACIT ITA. No.2841/Del/2022 AY. 2018-19 ITAT Delhi ‘C’ Bench order dated 16.04.2023 32 Advance Engine Technologies Ltd vs ACIT Circle-1 ITA. No.866 & 3722/Mum/2017 order dated 04.03.2020 33 Form 3CLA w.e.f 01.07.2016 34 Hon'ble Allahabad High Court decision in case of M/s. ML Chains W.T. No.638 of 2022 order dt 16.08.2023 (B.4) The aforesaid paper book also contained written submissions which are reproduced below for the ease of reference: - “The Pr. CIT, (Central) has set aside the Assessment Order dated 07.02.2020 passed u/s 143(3) by invoking the provision sector 263 and directed to pass fresh order considering the issue raised in the notice u/s 263 of the LT. Act 1961, vide order dated 21.03.2022. The Pr.CIT (Central) has observed as under in para 6 and para 7 of the order u/s 263 at page 6 and 7. [Para 6] As per Rule 6(7A)(c) of the I.T. Rules, 1962, it is mandatory for the assessee to obtain the requisite audit report in form 3CLA and to furnish it electronically before the due date of filing the return of income. In the instance assessment year, report of the assessing officer concludes that such form 3CLA was not furnished either electronically or before the assessing officer during the course of the assessment proceedings. In view of this the assessee was not eligible for deduction under section 35(2AB) read with Rule 6 but the same has been allowed in the assessment order dated 07.02.2020. ITA No.74/LKW/2022 Page 6 of 16 In view of the section 35 (2AB) read with Rule 6 which is effective from 01.07.2016, my observations are as under: The form 3CL dated 14.08.2017 so furnished is in old format instead of the new format effective from 01.07.2016. Also form 3CL, in new format, should have been funniest electronically as per Rule 6(7A)(b) of the LT. Rules, 1962. However, required evidence for it being furnished electronically have not been submitted by the assessee. [Para7] Thus, during the course of the assessment proceedings, the Assessing Officer while making assessment has not examined/enquired into the detail of the case and there is a clear error on application of section 35(2AB) of the I.T. Act, 1961 read with Rule 6 of the I.T. Rules, 1962. Therefore, the assessment made is erroneous in so far as it is prejudicial to the interest of the revenue as per the provisions of section 263 of the Income Tax Act, 1961. The Pr. CIT, (Central) mentioned that form 3CL dated 14.08.2017 so furnished in old format instead of new format effective from 01.07.2016. Also form 3CL in new format, should have been furnished electronically as per Rule 6(7A)(b) of I.T. Rules. However, required evidence for it been furnished electronically have not been submitted by the Assessee. Emphasis supplied) Pr. CIT, (Central) further mentions as per Rule 6(A)(C) of IT Rule it is mandate for the assessee to obtain audit re: ort in form 3CLA and to furnish electronically before the due date of filing the return of income. It can be seen that filing of form 3CL and form 3CLA was required to be furnished by assessee. How can be so purported failure on the part of assessee be termed as error on the part of the Assessing Officer. In the case of Gupta Spinning Mills Private Limited vs CIT, Delhi IV ITA No. 3398/Del/2010 A. Y. 2006-7 vide order dated 29.02.2012 Hon’ble ITAT observed as under: As far as absence of discussion in the assessment order is concern, this is what has been la down b_ this court in the case of Rayon Silk Mills v. CIT 1996 221 ITR 155: “In the first instance it was contended by learned Counsel for the assessee that the very premise on which order under section 263 was made against the assessee, namely, that the Income Tax Officer has not at all examined the goodwill account is not existent. According to him, it is apparent from the record that the goodwill account was thoroughly examined by the Income Tax Officer before making the assessment and after examining when he accepted the contention of the assessee its discussion did not find place in the assessment order, as no additions were going to be made or no modifications in the return filed by the assessee were required to be made in that regard. This connection of the assessee appears to be well-founded. It is true that the assessment order does not speak about the examination of goodwill ITA No.74/LKW/2022 Page 7 of 16 account as such. However, as we have notice above the assessee in his reply to the show-cause notice under section 263 has specially mentioned that the entire matter was scrutinized and accepted while passing the assessment order.”------ “For an order of the Assessing Officer to be interfered with in exercise of revisional powers the Commissioner of Income tax has to find in the Revenue. The conditions are twin conditions as held b the a-ex court and both o them have to be fulfilled before the Commissioner o Income Tax can exercise jurisdiction under section 263 o the Act. In the case of Malabar Industrial Corporation Limited v. CIT [2000] 243 ITR 83 (SC) the apex court has held: “The phrase prejudicial to the interest of the Revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue: or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue, unless the view taken by the Income tax Officer is unsustainable in law.”----- (Emphasis supplied) In the case of Infosys Ltd. Vs JCIT dated 02.06.2005 ~---“However, if necessary enquiry has been made and satisfaction of assessing officer has been arrived at, though not clearly mentioned in the assessment order, such order cannot be raised on the ground that the claim has been allowed without the provision of law. We once again mention that without pointing out error in assessment order, The CIT is not justified, in passing an order in revision directing the assessing officer to make further enquires. We according set aside the order of learned CIT for assessment year 1996-97\"----(Emphasis supplied) The Hon’ble Bangalore ITAT further observed as under: -------“The assessee is now in appeal before us against the aforesaid findings of the CIT. At the outset, the Ld. AR on behalf of the assessee while inviting our attention to page 12 of the paper book contended that during the course of assessment proceedings, the AO raised a specific query on the issue of trading in shares and the assessee had filed a detailed reply vide letter dated 16th October, 2008. Since the AO had applied his mind to the facts of the case and had raised a specific query the Ld. CIT was not justified invoking the provisions of section 263 of the Act. The finding of the Ld. CIT that there was lack of enquiry, is factually incorrect, the Ld. AR submitted. Inter alia, the Ld. AR relied upon the decisions in CIT vs. Max India Limited 295 ITR 282 (S.C.); CIT vs. Sunbeam Auto Limited 332 ITR 167 (Del.); CIT vs. Anil Kumar Sharma 335 ITR 83 (Del.); CIT vs. Vikas Polymers 236 CTR 476/194 Taxman 57; Hari Iron Trading Company vs. CIT, 263 ITR437 (P&H); Malabar Industrial Co. Ltd. vs.CIT,243 ITR 83(S.C.); CIT vs. Hindustan Coca-Cola Beverages (P) Ltd. 331 ITR 192 (Del.); CIT vs. International Travel House Lid. 194 Taxman 324; CIT vs. DLF Power Limited 329 ITR 289 (Del.); CIT vs. Eicher Limited 294 ITR 310 (Del.) CIT vs. Ashish Rajput, 320 ITR 674 (Del.); CIT vs. Rohit Anand, 327 ITR 445 (Del.); CIT vs. Gopal Purohit, 228 CTR 582 (Bom.); and CIT vs. PNB Finance and Industries Limited, 236 CTR 1 (Del.). ”-----(Emphasis supplied) In the present case filed detail reply before AO on 12 December, 2019 clearly stated in point no. 6. ITA No.74/LKW/2022 Page 8 of 16 The caption in the I.T. Rules 1962 regarding form No. 3CL is as under: Form No. 3 CL Report to be submitted b the prescribed authority to the Income Tax Act Authority specified under sector 35(2AB) of the Income Tax Act, 1961. This is to be signed by Secretary Department of Scientific and Industrial Research. The caution of Form 3CLA in the I.T. Rules is as under Report from an accountant to be furnished under sub sector (2AB) Section 35 o the Act relating to in house scientific research and development facility. The detailed Audit Report was filed on 26.11.2016. This report inter alia mentions about the expenditure relating section 35 (2AB) in para 19 of report. Hence, the details were available to the Assessing Officer and also filed during the course of hearing in reply dated 12 December, 2019. In the case of Advance Enzyme Technologies Ltd. vs. ACIT Circle-1 ITA No. 866 and 5172/Mum./2017 AYs 2011-12 and 2012- 13 vide order dt. 04.03.2020 the House ITAT observed in para 10 page 7 as under: “We have heard both the parties, perused the material available on record and gone through orders of the authorities below. We find that an identical issue has been considered by the Tribunal in assessee own case for A.Y. 2010-11, where it has been held that once, R&D facility has been recognized by the competent authority, then deductions provided u/s 35. 2AB cannot be denied merely or the reason that approval of expenditure for the impugned year in prescribed form has not been received from the competent authority. The relevant findings of the Tribunal are as under: We have heard both the parties, perused the material available on record and gone through orders of the authorities below. The assessee is in the business of manufacturing industrial enzymes. The assessee has setup three R&D facilities at various places and such R&D facilities has been approved and recognized by the competent authority, DSIR, Ministry of Science and Technology, Govt. of India vide letter dated18.01.2012. The assessee has obtained another approval from DSIR for a period of three years which was valid up to 31.03.2012. The undisputed position emerge from the fact before us is that the assessee has obtained initial recognition from competent authority DSIR, and such recognition was valid up to 31.07.2012 in respect of R&D facilities at Thane. In so far as R&D facility at Wagle Industrial Estate, Thane, it has commenced activities from 01.02.2011 and application for registration has been filed on 11.03.2011. In case of another R&D unit at 135/A Wagle Industrial Estate, Thane (NTRC) the assessee has commenced its activities from 01.08.2012. Thereafter, the assessee has filed an application for recognition of NTRC vide letter dated 12.10.2012. The DSIR neither rejected the claim of application filed by the assessee nor communicated the position of application filed by the assessee at any time during the relevant period. The assessee has filed writ petition before the Hon’ble Delhi High Court and challenge the action of the competent authority i.e. the Secretary, DSIR, Ministry of Science and Technology, Govt. of India and the writ application filed by the assessee pending for adjudication. Be that as it may, but the undisputed facts are that the DSIR has issued recognition for all units vide its communication dated 15.01.2014 and such recognition was valid up to 31.03.2016, subsequently, the renewal of recognition was also granted up to 31.03.2019. Further, the assessee has claimed deduction u/s 35 (2AB) of the Act, from AY 2002-03 to 2008-09 and such ITA No.74/LKW/2022 Page 9 of 16 claim has been accepted by the department for those years. In fact there is no dispute with regard to claim for AY 2014-15 onwards. The only dispute is with regard to the intervening period of AY 2009-10 to AY 2013-14, where the department for the reason that necessary approval from the competent authority inform 3CM was not produced before the AO. In light of above factual background, if you examine the claim of the assessee in light of provisions of section 35(2AB) of the Act, one has to be see whether periodical approval/renewal from the competent authority is required to ‘clean the benefit of weighted deduction u/s 35 (2AB) of the Act, when the initial recognition from the competent authority was valid for the period under cover. The provisions of sec. 35 (2AB) of the Act, deals with a cases where a company engaged in the business of manufacture or production of any article or thing incurs any expenditure on scientific research on in- house research and development facility as approved by the prescribed authority then there shall be allowed a deduction of some equal to 150% of such expenses incurred by the assessee for in-house research and development facilities. For this purpose, prescribed authority is Secretary, DSIR, Ministry of Science and Technology, Govt. of India. Further Rule 6 and 7A of Income Tax Rules, 1962 provides the procedure of approval of R&D facility. As per Rule 6 of the Income Tax Rules, 1962, the prescribed authority for expenditure on scientific research and development for the purpose of 35 (2AB) of the Act, shall be the Secretary, DSIR. Sub Rule (4) requires the assessee to furnish the application in form 3CK. As per Sub Rule 8A. If the prescribed authority is satisfied the condition provided in this Rule and in Sub Sec. 2AB of Sec. 35 of the Ac are fulfilled then the prescribed authority shall an order in writing in from No. 3CM. In this case, there is no dispute with regard to fact that the R&D facility set up by the assessee at three places are initially recognized by the competent authority. In fact, the R&D facility of the assessee has been initially recognized by the competent authority from AY 2001-02 onwards. The only dispute is with regard to approval of prescribed authority in form No. 3CM. The A.O. as well as the Ld. CIT A was on the opinion that although the initial re-composition was to the assessee by the competent authority but the approval of the facility for the used in form 3C was not on record. Therefore that in absence of approval in prescribed form 3CM the assessee is not entitled for weighted deduction u/s 35 2AB of the IT Act. Expect this, existence of R&D facility at three places and consequent expenditure incurred for relevant purpose are not disputed by the authorities. In fact, the A.O. as well as Ld. CIT (A) have categorically accepted that the assessee has set up R & D centres and incurred various expenditure for in house research and development purpose. In this legal and factual background, if you go through the claim of the assessee towards dedication claim u/s 35 (2AB) of the Act, we need to examine such claim made by the assessee is in accordance with provision of section 35 (2AB) of the IT Act, and relevant Rule 6 and 7A of the IT Rules, 1962. In order to claim the benefit of weighted deduction u/s 35 (2AB) of the Act, the assessee should fulfilled two conditions. First condition is there should in- house research and development. The competent authority for this purpose has been defined as the secretary, DSIR, Ministry of Science and Technology, Govt. of India, there is a prescribed procedure for approval of R&D facility. Rules 6 and 7A of the Income Tax Rules, 1962, provides for mechanism of filing an application and related approval by the competent authority. At the cost of repetition, we note that the assessee has filed its application in from 3CK relevant period which is pending before the competent authority. The competent authority neither rejected the application filed by the assessee nor sent any communication in this regard. The assessee has challenged the action of the competent authority by way of writ petition before the Hon’ble Delhi High Court and such writ ITA No.74/LKW/2022 Page 10 of 16 petition filed by the assessee is pending for adjudication. Be that as it may, fact remains that its facility has been initially recognized from the AY 2001-02 onwards, and the assessee has continuously claimed deduction u/s 35 (2AB) of the Act, up to AY 2008-9 and such claim has been accepted by the department. It is also not in dispute that from AY 2014-15 the assessee has been allowed the benefit of weighted deduction u/s 35 (2AB) of the Act. Having said so, let us see law laid down by various Courts on this issue the Hon’ble Gujarat High Court in the case of CIT vs. Claris Lifescience Ltd. supra has considered identical issue in list of provisions of Sec. 35 2AB of the Ac and held that the provisions nowhere suggest simply that R &D facility is approved from articular date and in other words it is no where suggested that date of approval only will be cut off date for eligibility. The court further held that once facility is approved, the entire expenditure so incurred on development of R&D facility has to be allowed for weighted denudation. The Hon’ble Delhi High Court in the case of Maruti Suzuki India Pvt. Ltd., (supra) vs. Union of India, had considered an identical issue and held that for availing the benefit u/s 35 (2AB) of the Act, what is relevant is not the date of recognition or the cut of date mentioned in the certificate of the DSIR or even the date of approval, but the existence of recognition. The Hon’ble Gujarat High Court in the case of Banko Product India Ltd. vs. DCIT (supra) had once again reiterated its earlier position in the case of claris Lifescience Ltd. (supra) and held that once an application is filed by the assessee would have no control over when such application is processed and decided. The Hon’ble court further held that period during which the approval is granted is not relevant as long as such approval is granted and expenditure has been incurred for this specified purpose. The Hon’ble Gujarat High Court in the case of CIT vs. Sun India Ltd. (supra) had once again considered on identical issue and held that once R&D facility set up by the assessee has been approved by the prescribed authority and necessary approval was granted in the prescribed format, then the communication in form 3CM was thereafter between the prescribed authority and the department. If the same was not so surely the assessee cannot be make to suffer. The Hon’ble Madras High Court in the case of CIT vs TVS Electronics Ltd. (supra) had held that the assessee cannot be punished for the bureaucratic delay in given such approval for the year in question, which was in the hands of the department concerned of the Central Govt. itself. On the very fact that for the period anterior period and posterior to the year in question such approval was very well on the record of the Revenue, weighted deduction for the expenditure incurred on the scientific research could not have been disallowed by authority below. The sum and substance of ration laid down by the Hon’ble High Court are that once the assessee has been b the competent authority then subsequent renewal/communication of such as approval in prescribed form is not relevant and what is relevant to decide the entitlement of deduction is existence of such facility (Emphasis supplied) The Assessing Officer in the online notice u/s 142(1) dated 28.11.2019 asked for the following details Large amount allowable as deduction claimed in schedule BP of return you have claimed appreciation and amortization of Rs. 13,99,09,078/-. Please furnish documentary evidence on this observation along with justification. 2. Delayed payment of tax and return filed after due date Please furnish details on this observation with satisfactory reason for delay in filing the return as well as for the delayed payment of tax. 3. Gross total income is less than value of foreign remittance sent Please furnish the details of foreign remittances and their source along with justification on this observation. Mismatch between income/receipt ITA No.74/LKW/2022 Page 11 of 16 credited to profit and loss account considered under other heads of income and income from other heads of income other that business/profession Furnace reconciliation in respect of income/receipt declared under the head “Income from business or profession”. “Income from other source” and as well as income from other heads. Large deduction clean under chapter VI-A: You have the large deduction under Chapter VI-A of the Act. In this regard, please justify the said deduction under the relevant section and that you fulfilled the requisite condition, stipulations, rules etc. Please furnish requisite documentary evidence based on which such deduction has been claimed. In case of your failure to furnish these details, the corresponding direction claimed is liable to be disallowed. Large deduction claimed u/s 35 2AA 35 2AB 35 CCC and 35 CCD: Please furnish the details of deduction claimed on the account of scientific research along with their document evidence. (Emphasis supplied) Large long term capital gains: You have shown a long term capital gain of Rs. 2,96,81,947/in return of Income for AY 2016-17. Please furnish the documentary evidence on this observation. Large outward remittance to non-residence not being a company, or to a foreign company Please furnish details in this regard alongwith their source and proper justification on this observation. Low capital gains with respect to sale consideration: Please furnish the complete detail of capital gain alongwith their sale consideration. Justify that capital gain are proportionate to the sale consideration. Large other expenses claimed in profit and loss a/c: Furnish details on this observation alongwith copy of ledger account of expenses claimed under this head with proper justification. It can be seen that AO has asked for large deduction claimed w/s 35 (2AA), 35 (2AB), 35 (CCC) and 35 (CCD). Hence the observation of Pr. CIT that AO has not examined maintained in para 3 of notice the AO has not enquired into 35 (2AB) in factually incorrect. The assessee vide reply to DCIT central circle filed on 12th December, 2019 filed as under: With reference to your query No. 1, sir, it is humbly submitted that depreciation is a statutory allowance and the working of the same may be verified with schedule of depreciation as per Income Tax Act, attached along with Tax Audit Report of the assessee company. With reference to your query No. 2, sir, in this regard it is submitted that the matter of the company relates to the TPO for which the last date for filing ITR was 30.11.2016 and the ITR of the assessee has been filed on 28.11.2016 vide acknowledgement no. 545253661281116 and there is no delay in filing ITR for the year under consideration. With reference to your query No. 3, sir, it is submitted that the evidence of foreign remittance are being produced herewith for your kind perusal. In reference to your query No. 4, sir, it is submitted that for the same books of accounts alongwith bills and vouchers are being produced here from which all the incomes may be reconciled. ITA No.74/LKW/2022 Page 12 of 16 In response to your query no. 5, competition of income of the assessee company alongwith all the reports prescribed as well as filed along with the ITR are being furnished here. In response to your query no. 6 regarding large deduction claim u/s 35 2AA 35 2AB 35 CCC and 35 CCD copy of form 3 CM and 3 CL are being enclosed herewith as well as the expenditure incurred in this respect, may be verified with the Audit Report Balance Sheet alread filed as well as with the books of accounts and bills or and voucher being produced here for your kind perusal. (Emphasis supplied) In response to your query no. 7, the concerned documentary evidences are being furnished herewith in support of Long Term Capital Gain. Query no. 8 is being replied in query no. 3 above. Query no. 9 and 7 are similar which is being replied in query no. 7 above. In response to your query no. 10, sir, it is stated that according to the size of the company as well as in comparison of earlier years, the same are quite reasonable, however, the same maybe verified with the books of accounts and bills and vouchers being produced herewith for your kind consideration. It can be seen at para 6 that copy for form 3CM and 3CL were enclosed and submitted all the documents concluding audio report bills voucher for verification. The Pr. CIT, (Central) has hypothetically assumed that there was error on the part of the Assessing Officer. As per sub section of 35 (2AB) the prescribed authority shall submit its report in relation to the approval of the said facility to the Pr. Chief Commissioner or Chief Commissioner or Pr. Director General or Director General in such form and within such time as may be prescribed. It can be seen that how Assessing Officer comes into the Picture regarding filing of report by the prescribed authority. The Pr. CIT, (Central) has nowhere discussed that how the assessment order is prejudicial to the interest of Revenue. Pr. CIT (Central) has expressed his own unique view which is out of the ambit of erroneous in so far as it is prejudicial to the interest of revenue. (Emphasis supplied) In the case of Infosys Technologies Ltd. vs JCIT vide order dated 02.06.2005. Hon’ble Bangalore ITAT stated as under: -----“However, if necessary enquiry has been made and satisfaction of assessing officer has been arrived at, though not clearly mentioned in the assessment order, such order cannot be raised on the ground that the claim has been allowed without the provision of law. We once again mention that without pointing out error in assessment order, The CIT is not justified, in passing an order in revision directing the assessing officer to make further enquires. We according set aside the order of learned CIT for assessment year 1996-97”---- (Emphasis supplied) In the notice under 263 the Pr. CIT, (Central) has mentioned in para 2 that approval of deduction in the prescribed proforma by the competent authority as per the provisions of section 35 (2AB) of IT Act, 1961, read with Rule 6 of IT Rule 1962 is not found on records. 1. It can be seen that proforma not found on records is factually incorrect. 2. Secondly Pr. CIT, ITA No.74/LKW/2022 Page 13 of 16 (Central) has not talked about new proforma w.e.f. 01.07.2016 in the notice u/s 263. In the entire notice Pr. CIT has not mentioned a single word regarding new proforma but while cancelling the assessment order he based his findings on old format and new format. In the notice u/s 263 Pr. CIT (Central) has However, not discussed the non filing of form 3CLA but while cancelling the assessment order he bases his findings on non availability of form 3CLA. The order of Pr. CIT, (Central) u/s 263 is beyond the domain of notice u/s 263 and such order cannot be legal. He has to state the error on the part of Assessing Officer and the order is prejudiced to the interest of revenue simultaneously. Approval of in house R&D facility u/s 35 (2A) was communicated from Department of Science and Infrastructure Technology vide letter dated 16/8/2007 to the assessee. This approval also contains 01.Form 3CM 02.Form 3CL Letter and the form 3CM and form 3CL are enclosed. Pr. CIT, (Central) had not assumed the jurisdiction ws 263 regarding ‘New and Old Form’ or for ‘Certificate in form 3CL’ while issuing the notice so the order of Pr. CIT, (Central) is illegal also and does not satisfy the twin conditions of erroneous and prejudicial to the interest of revenue. As well as on merits as discussed above there is no error in the assessment order. The detailed Audit Report was filed on 26.11.2016. This report inter alia mentions about the expenditure relating section 35 (2AB) in para 19 of report. Hence, the details were available to the Assessing Officer and also filed during the course of hearing. In the case of PCIT vs Universal Music India Pvt. Ltd., ITA No. 238 of 2018 vide order dated 19.04.2022 Hon’ble Bombay High Court observed as under: ‘ a---“In the case at hand, there is a finding by the Tribunal, as noted earlier, that no issue was raised by CIT in respect of particulars of Payment made to persons specified u/s 40A(2)(b) of the Act and even the show cause notice is silent about that.”---- Hon’ble ITAT is earnestly prayed that the order of Pr. CIT (Central) under section 263 maybe set aside in view of above. (C) At the time of hearing before us, the Ld. Counsel for the appellant assessee drew our attention to written submissions [relevant portion of which has been already been reproduced in foregoing paragraph (B.4) of this order] and placed reliance on it. The Ld. DR supported the impugned order passed u/s 263 of the Act. ITA No.74/LKW/2022 Page 14 of 16 (C.1) We have heard both sides. We have perused materials on record. It is found that the Assessing Officer passed assessment order dated 07.02.2020, allowing the assessee’s claim u/s 35 the Act; which was revised by Ld. PCIT vide aforesaid impugned order u/s 263 of the Act. The contents of paper-book [referred to in foregoing paragraph (B.3) of this order] and written submissions from the assessee’s side [relevant portion already reproduced in foregoing paragraph (B.4) of this order] clearly indicate that the assessee had provided all relevant details pertaining to claim u/s 35 of the Act, during assessment proceedings, in response to queries of the Assessing Officer. Therefore, it is not a case of no inquiry by the Assessing Officer. The Ld. PCIT has, however, taken adverse view in impugned order u/s 263 of the Act, taking recourse to amended Rule 6 of Income Tax Rules (amended w.e.f. 01.07.2016), read with section 35(2AB) of the Act. [In operative part of his impugned order u/s 263 of the Act, at para 6 of his impugned order, Ld. PCIT refers to Rule 6, effective from 01.07.2016]. This case pertains to AY. 2016-17 (for which relevant previous year is 2015-16). The Ld. PCIT has, however, failed to discuss whether (and if yes, then why) amended provisions under Rule 6 of Income Tax Rules effective from 01.07.2016 would have any bearing on previous year 2015-16, ending on 31.03.2016. (C.2) Notwithstanding the foregoing, the specific observations of the Ld. PCIT in support of his impugned order u/s 263 of the Act are twofold: firstly, he observed that Form 3CL is in old format instead of new format effective from 01.07.2016; and the same should have been furnished electronically. Secondly, the Ld. PCIT holds that audit report in Form 3CLA was to be furnished ITA No.74/LKW/2022 Page 15 of 16 electronically before the due date of filing of the return of income, which was not furnished to the Assessing Officer during the course of assessment proceedings. On perusal of Form 3CL, it is found that the same is issued by Secretary, Department of Scientific and Industrial Research, Government of India. Therefore, if the issuing authority has used the old Form 3CL instead of the new Form 3CL the assessee cannot be faulted for this. Similarly, if Form 3CL was not filed by the issuing authority in electronic form, but in physical form, the assessee cannot be faulted for this. These matters were not within the control of the assessee, because the Form 3CL is not prepared and issued by the assessee but instead, it is prepared and issued by Secretary, Department of Scientific and Industrial Research, Government of India. Secondly, as regards Form 3CLA, it is found that this is to be submitted to Secretary, Department of Scientific and Industrial Research, Government of India and not to the Assessing Officer or to any Income Tax Authority. Therefore, no adverse view can be taken against assessee for non-furnishing of the Form 3CLA to the Assessing Officer or to the Ld. PCIT. There is no dispute that in-house Research and Development Centre of the assessee is approved by Secretary, Department of Scientific and Industrial Research, Government of India. Further, there is no dispute that competent authority has already issued Form 3CL and sent to Chief Commissioner of Income Tax (Exemptions) as required u/s 35 of the Act. In view of the foregoing, it is obvious that the bases on which Ld. PCIT passed the aforesaid impugned order u/s 263 of the Act are unsustainable. Therefore, it is held that the Ld. PCIT erred in revising the assessment order dated 07.02.2020 passed by the Assessing Officer. Accordingly, ITA No.74/LKW/2022 Page 16 of 16 impugned order 21.03.2022 passed u/s 263 of the Act is set aside and assessment order dated 07.02.2020 is restored. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 18/03/2025. Sd/- Sd/- [KUL BHARAT] [ANADEE NATH MISSHRA VICE PRESIDENT ACCOUNTANT MEMBER DATED: 18/03/2025 Vijay Pal Singh, (Sr. PS) Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR 5. Guard file By order //True Copy// Assistant Registrar "