PCP CHEMICALS P.LTD, MUMBAI V. ITO 8(2)(4), MUMBAI

ITA 4381/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8666 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: T RAVINDRA
• Keywords: Depreciation; Competent authority; Revised return; Capital expenditure
• Section: 142(1); 115JB; 6

Judgement Text

1 ITA NO.4567/MUM/2016 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.4381/MUM/2015 (ASSESSMENT YEAR 2011-12) M/S PCP CHEMICALS PVT LTD PLOT NO.20, LOO-LOO, N.S. ROAD NO.9, PVPD SCHEME VILE PARLE (W), MUMBAI PAN : AABCP6538L VS ITO, 8(2)(4), MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI T RAVINDRA RESPONDENT BY SHRI SUMAN KUMAR DATE OF HEARING 27-09-2017 DATE OF PRONOUNCEMENT 11 -10-2017 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF CIT(A)- 17, MUMBAI DATED 09-06-2015 AND IT PERTAINS TO AY 2 011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. AS PER FACTS & CIRCUMSTANCES OF THE CASE THE LEARNE D COMMISSIONER OF APPEALS ERRED IN CONFIRMING AO'S OR DER DISALLOWING WEIGHTED DEDUCTION U/S. 35 (2AB) OF INC OME-TAX ACT DESPITE LABORATORY IS RECOGNIZED BY DEPARTMENT OF SCIENTIFIC & INDUSTRIAL RESEARCH, GOVERNMENT OF IND IA. 2. AS PER FACTS & CIRCUMSTANCES OF THE CASE THE LEARNE D 2 ITA NO.4567/MUM/2016 COMMISSIONER OF APPEALS ERRED IN REJECTING THE CLAI M MERELY BECAUSE THE RECOGNITION IS NOT IN PRESCRIBED FORM N O. 3CK AND 3CM WHICH IS ONLY A TECHNICAL COMPLIANCE. BUT SINCE THE APPELLANT COMPANY HAS GOT RECOGNITION FROM GOVERNME NT OF INDIA WHICH ENABLES THE COMPANY TO CLAIM WEIGHTED D EDUCTION U/S. 35 (2AB) OF I. I. ACT, 3. AS PER FACTS & CIRCUMSTANCES OF THE CASE THE LEARNE D ASSESSING OFFICER ERRED IN NOT CONSIDERING THE FACT THAT THE APPELLANT COMPANY HAD ALREADY INCURRED BOTH REVENUE & CAPITAL EXPENDITURE BEFORE APPELLANT COMPANY GOT TH E CERTIFICATE IN FORM NO 3CK & 3CM. RELIANCE IS PLACED ON AARTI I NDUSTRIES LTD ADDI CIT ITAT MUMBAI A BENCH (33 CCH 279 MUM) 4. AS PER FACTS & CIRCUMSTANCES OF THE CASE THE LEARNE D ASSESSING OFFICER ERRED REJECTING REVISED RETURN FILED U/S 139(5), ON 2ND FEBRUARY 2013 WHICH WAS MAINLY TO CORRECT THE ERROR IN THE COMPUTATION OF ADDING BACK CAPITAL EXPENDITURE OF RS.16,55,318 TO THE NET PROFIT TO ARRIVE AT GROSS T OTAL INCOME. IN FACT CAPITAL EXPENDITURE WAS NEVER DEBITED TO P& L A/C, BESIDES THERE WAS ERRED IN CLAIMING DEPRECIATION OF RS.16,19,678 IN THE ORIGINAL RETURN AS AGAINST ALLOWABLE DEPRECI ATION OF RS.15,23,618 CLAIMED IN THE REVISED RETURN. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE C OMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING RUST PREVENTIVE CHEMICALS AND ADHESIVES, HAS FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-1 1 DECLARING TOTAL INCOME OF RS.4,57,069 UNDER NORMAL PROVISIONS OF THE ACT AND RS.41,74,212 UNDER BOOK PROFIT AS PER PROVISIONS OF SECTION 115JB OF THE AC T. THE ASSESSEE ALSO FILED A REVISED RETURN OF INCOME ON 02-02-2013 REVISING THE INCOME AT RS.29,50,383. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 142(1) OF THE ACT 3 ITA NO.4567/MUM/2016 ALONG WITH QUESTIONNAIRE WERE ISSUED. IN RESPONSE TO THE NOTICES, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED AND SUBMITT ED DETAILS CALLED FOR. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS CLAIMED WEIGHTED DEDUCTION AT 200% U/S 35 (2AB) OF THE I.T. ACT, 1961 IN RESPECT OF R&D EXPENDITURE. THE AO FURTHER NOTICED THAT THE ASSESSEE HAS FILED REVISED RETURN WITHDRAWING THE CLAIM OF WEIGHTED DE DUCTION U/S 35(2AB) FOR RESEARCH & DEVELOPMENT EXPENDITURE. THEREFORE, ASK ED THE ASSESSEE TO FURNISH THE DETAILS OF RESEARCH AND DEVELOPMENT EXP ENDITURE ALONG WITH NECESSARY APPROVALS FROM COMPETENT AUTHORITY. IN R ESPONSE TO NOTICE, THE ASSESSEE HAS FILED DETAILS OF RESEARCH AND DEVELOPM ENT EXPENDITURE INCURRED IN ITS IN-HOUSE RESEARCH AND DEVELOPMENT FACILITY AND CLAIMED THAT ITS RESEARCH AND DEVELOPMENT FACILITY HAS BEEN APPROVED BY DEPAR TMENT OF SCIENTIFIC AND INDUSTRIAL DEVELOPMENT RESEARCH AND THE APPROVAL WA S ACCORDED ON 31-10- 2012 FOR THE PERIOD FROM 01-04-2011 TO 31-03-2013. THE ASSESSEE FURTHER SUBMITTED THAT THOUGH ITS RESEARCH AND DEVELOPMENT EXPENDITURE HAS BEEN APPROVED FOR THE ASSESSMENT YEAR 2012-13 ONWARDS, I TS RESEARCH AND DEVELOPMENT EXPENDITURE HAS BEEN RECOGNIZED BY THE SECRETARY, DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL DEVELOPMENT RESEARCH, THEREFORE, IT CAN CONTINUE TO CLAIM WEIGHTED DEDUCTION EVEN THOUGH THE CERTIFICAT E OF APPROVAL HAS BEEN GIVEN ON A SUBSEQUENT DATE. THE AO, AFTER CONSIDER ING THE EXPLANATIONS OF THE 4 ITA NO.4567/MUM/2016 ASSESSEE AND ALSO ON ANALYZING THE PROVISIONS OF SE CTION 35AB OBSERVED THAT IT IS VERY CLEAR FROM THE PROVISIONS OF SECTION 35(2AB ) THAT THE APPROVAL FOR RESEARCH AND DEVELOPMENT BY THE PRESCRIBED AUTHORIT Y IS MANDATORY AND THEN ONLY DEDUCTION COULD BE CLAIMED AND ALLOWED POST FA CT COMPLIANCE OF OBTAINING THE REQUISITE APPROVAL IS NOT PERMITTED U/S 35(2AB) OF THE ACT. IN THIS CASE, THOUGH APPROVAL DATE IS FROM 01-04-2011 TO 31-03-20 13, THE ASSESSEE HAS CLAIMED WEIGHTED DEDUCTIONS FOR THE PERIOD PRIOR TO APPROVAL GIVEN BY THE COMPETENT AUTHORITY I.E. FOR AY 2011-12 WHICH CANNO T BE ALLOWED. IN VIEW OF THE ABOVE, WEIGHTED DEDUCTION CLAIMED BY THE ASSESS EE U/S 35(2AB) OF RS.37,20,504 HAS BEEN DISALLOWED AND ADDED TO THE I NCOME OF THE ASSESSEE. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PRE FERRED APPEAL BEFORE THE CIT(A). BEFORE CIT(A), THE ASSESSEE HAS REITER ATED ITS STAND TAKEN BEFORE THE AO TO ARGUE THAT ONCE ITS R&D FACILITY HAS BEEN RE COGNIZED BY THE COMPETENT AUTHORITY, I.E. SECRETARY, DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL DEVELOPMENT & RESEARCH, GOVERNMENT OF INDIA. OBTAINING A CERTI FICATE IN PRESCRIBED FORM IS A FORMALITY, THEREFORE, IT IS ELIGIBLE FOR CLAIMING WEIGHTED DEDUCTION FOR THE ASSESSMENT YEAR 2011-12 EVEN THOUGH ITS APPROVAL HA S COME FROM AY 2012-13 ONWARDS. IN THIS REGARD, THE ASSESSEE HAS RELIED U PON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CLARIS LIFE SCIEN CE LTD VS CIT (2009) 221 CTR 301 (GUJ) AND HONBLE DELHI HIGH COURT IN THE CASE OF SANTAN VIKAS INDIA LTD VS 5 ITA NO.4567/MUM/2016 CIT 335 ITR 117 (DEL). 4. THE CIT(A), AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE OBSERVED THAT IT IS AN UNDISPUTED FACT THAT THE ASS ESSEES R&D FACILITY HAS BEEN APPROVED BY THE COMPETENT AUTHORITY WITH EFFECT FRO M 01-04-2011 ONWARDS WHICH IS EVIDENT FROM THE CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY IN FORM 3CM DATED 31-10-2012. THE COMPETENT AUTHORITY, I.E . SECRETARY, DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL DEVELOPMENT & RESEARC H, GOVERNMENT OF INDIA, HAS ACCORDED APPROVAL TO THE ASSESSEES IN-HOUSE R&D FA CILITY U/S 35(2AB) OF THE INCOME-TAX ACT, 1961 FOR THE PERIOD WITH EFFECT FRO M 01-04-2011 AND UPTO 31- 03-2013 ON THE BASIS OF APPLICATION FILED BY THE AS SESSEE IN PRESCRIBED FORM NO.3CK DATED 12-08-2011. THEREFORE, THE FACTS ARE VERY CLEAR THAT INASMUCH AS THE ASSESSEE HAS FILED ITS APPLICATION FOR RECOGNIT ION OF ITS R&D FACILITY ON 12-08- 2011 AND THE COMPETENT AUTHORITY HAS APPROVED ITS R &D FACILITY WITH EFFECT FROM 01-04-2011 ONLY AND HENCE, THE ASSESSEE IS NOT ELIGIBLE FOR WEIGHTED DEDUCTION U/S 35(2AB) FOR THE ASSESSMENT YEAR 2011- 12. INSOFAR AS DECISION RELIED UPON BY THE ASSESSEE, THE CIT(A) OBSERVED TH AT IN THE CASE OF CLARIS LIFE SCIENCES LTD (SUPRA), THE FACTS ARE ALTOGETHER DIFF ERENT FROM THE FACTS OF THE PRESENT CASE. THEREFORE, THE CASE LAWS RELIED UPON BY THE ASSESSEE CANNOT BE APPLIED TO THE FACTS OF ASSESSEES CASE. WITH THES E OBSERVATIONS, THE LD.CIT(A) UPHELD REJECTION OF WEIGHTED DEDUCTION CLAIMED BY T HE ASSESSEE U/S 35(2AB) OF 6 ITA NO.4567/MUM/2016 THE ACT. AGGRIEVED BY THE ORDER OF LD.CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE LD.CI T(A) ERRED IN CONFIRMING DISALLOWANCE OF WEIGHTED DEDUCTION CLAIM ED U/S 35(2AB) OF THE ACT DESPITE ASSESSEES R&D FACILITY IS RECOGNIZED BY DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL DEVELOPMENT & RESEARCH, GOVERNMENT OF I NDIA. THE LD.CIT(A) ERRED IN REJECTING THE CLAIM MERELY BECAUSE THE RECOGNITI ON IS NOT IN PRESCRIBED FORM 3CK AND 3CM WHICH IS ONLY A TECHNICAL COMPLIANCE, O THERWISE, THE ASSESSEES FACILITY IS RECOGNIZED BY THE COMPETENT AUTHORITY W HICH ENABLES THE ASSESSEE TO CLAIM WEIGHTED DEDUCTION U/S 35(2AB) OF THE ACT. T HE LD.AR, REFERRING TO THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS CLARIS LIFE SCIENCES LTD (SUPRA) AND THE HONBLE DELHI HIGH COURT IN THE CASE OF MARUTI INDIA LTD VS UOI (2017) 199 CCH 173 (DEL) SUBMITTED THAT IT IS S ETTLED POSITION OF LAW THAT FOR AVAILING THE BENEFIT U/S 35(2AB) OF THE ACT WHA T IS RELEVANT IS NOT THE DATE OF RECOGNITION OR THE CUT OFF DATE MENTIONED IN THE CE RTIFICATE OF THE DEPARTMENT OF SCIENTIFIC AND INDUSTRIAL DEVELOPMENT & RESEARC H, GOVERNMENT OF INDIA (DSIR) OR EVEN THE DATE OF APPROVAL BUT THE EXISTEN CE OF THE RECOGNITION IF AN R&D CENTRE IS NOT RECOGNIZED, IT IS NOT ENTITLED TO DEDUCTION. BUT IF IT IS RECOGNIZED, IT IS ENTITLED TO THE BENEFIT. IN THIS CASE, THE ASSESSEES R&D FACILITY IS RECOGNIZED BY THE COMPETENT AUTHORITY AND TAKING APPROVAL IN THE PRESCRIBED 7 ITA NO.4567/MUM/2016 FORM IS A FORMALITY FOR WHICH THE BENEFIT OF DEDUC TION CANNOT BE DENIED. 6. ON THE OTHER HAND, THE LD.DR STRONGLY SUPPORTED THE ORDER OF THE CIT(A) SUBMITTED THAT THE CIT(A) SUBMITTED THAT THE CIT(A) HAS BROUGHT OUT CLEAR FACTS TO THE EFFECT THAT THE ASSESSEES R&D FACILITY IS A PPROVED WEF 01-04-2011 AND HENCE, THE ASSESSEE IS NOT ENTITLED FOR WEIGHTED DE DUCTION FOR THE IMPUGNED ASSESSMENT YEAR. INSOFAR AS CASE LAWS RELIED UPON BY THE ASSESSEE, THE LD.DR POINTED OUT THAT IN THE CASE OF CIT VS CLARIS LIFE SCIENCES LTD (SUPRA), THE ASSESSEE HAS FILED APPLICATION IN THE FINANCIAL YEA R RELEVANT TO THE ASSESSMENT YEAR AND THE AO HAS DENIED THE BENEFIT OF DEDUCTION PRIOR TO THE DATE OF APPLICATION, BUT WITHIN THE SAME FINANCIAL YEAR. I N THE ABOVE CIRCUMSTANCES, THE HONBLE COURT OBSERVED THAT THE DATE OF APPROVA L OF R&D FACILITY IS NOT RELEVANT; IF THE R&D FACILITY IS RECOGNIZED IN THE RELEVANT FINANCIAL YEAR THEN THE ASSESSEE IS ELIGIBLE FOR DEDUCTION FOR WHOLE FINANC IAL YEAR. THEREFORE, THE CASE LAWS RELIED UPON BY THE ASSESSEE CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIALS AVAILABLE ON RECORD. THE SOLITARY ISSUE CAME UP FOR OUR CONSIDE RATION IS WEIGHTED DEDUCTION CLAIMED BY THE ASSESSEE U/S 35(2AB) OF THE INCOME-T AX ACT, 1961 IN RESPECT OF R&D EXPENDITURE INCURRED BY THE ASSESSEE TOWARDS RE SEARCH AND DEVELOPMENT IN ITS IN-HOUSE R&D ARE NOT DISPUTED BY THE LOWER A UTHORITIES. THE ONLY DISPUTE 8 ITA NO.4567/MUM/2016 IS WITH REGARD TO THE DATE OF APPROVAL BY THE COMPE TENT AUTHORITY AND PERIOD OF APPROVAL. ACCORDING TO THE AO, THE ASSESSEE IS NOT ENTITLED FOR THE BENEFIT FOR THE AY 2011-12 BECAUSE THE COMPETENT AUTHORITY HAS APPROVED THE ASSESSEES R&D FACILITY WEF 01-04-2011 ONWARDS. THE AO FURTHE R OBSERVED THAT THE ASSESSEE HAS FILED AN APPLICATION IN PRESCRIBED FOR M 3CK ON 12-08-201 AND THE COMPETENT AUTHORITY HAS ISSUED APPROVAL IN PRESCRIB ED FORM 3CM FROM 01-04- 2011 TO 31-03-2013. THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR WEIGHTED DEDUCTIONS FOR THE YEAR UNDER CONSIDERATION. IT IS THE CONTENTION OF THE ASSESSEE THAT DATE OF APPROVAL IS NOT MATERIAL FOR THE PURPOSE OF CLAIMING WEIGHTED DEDUCTION, IF THE FACILITY IS RECOGNIZED B Y THE COMPETENT AUTHORITY. THE ASSESSEE FURTHER CONTENDED THAT ITS R&D FACILIT Y HAS BEEN RECOGNIZED BY THE COMPETENT AUTHORITY I.E. SECRETARY, DEPARTMENT OF S CIENTIFIC AND INDUSTRIAL DEVELOPMENT & RESEARCH, GOVERNMENT OF INDIA AND TH E FORMAL APPROVAL HAS BEEN ACCORDED IN PRESCRIBED FORM WEF 01-04-2011 TO 31-03-2013 BUT THE ASSESSEE HAS INCURRED R&D EXPENDITURE IN THE IMPUGN ED FINANCIAL YEAR RELEVANT TO AY 2011-12, THEREFORE, THE ASSESSEE IS ELIGIBLE FOR WEIGHTED DEDUCTION U/S 35(2AB) OF THE ACT. 8. THE PROVISIONS OF SECTION 35(2AB) PROVIDES FOR WEIG HTED DEDUCTION OF 200% ON RESEARCH AND DEVELOPMENT EXPENDITURE INCURR ED BY THE ASSESSEE IN ITS IN-HOUSE R&D FACILITY, IF SUCH R&D FACILITY HAS BEE N PRESCRIBED I RULES 6(1B), 9 ITA NO.4567/MUM/2016 6(4), 6(5A) AND 6(7A) OF THE INCOME-TAX RULES, 1962 . AS PER THE RULES, THE ASSESSEE HAS TO MAKE AN APPLICATION IN PRESCRIBED F ORM WITH NECESSARY EVIDENCES ALONG WITH AGREEMENT WITH THE COMPETENT A UTHORITY. THE COMPETENT AUTHORITY, HAVING SATISFIED WITH THE CONDITIONS PRE SCRIBED UNDER THE ACT, CAN APPROVE THE R&D FACILITY IN PRESCRIBED FORM 3CM WIT H INTIMATION TO THE DEPARTMENT THROUGH PROPER CHANNEL. IN THIS CASE, T HE FACTS WITH REGARD TO THE ASSESSEES R&D EXPENDITURE AND RECOGNITION FROM THE COMPETENT AUTHORITY ARE NOT DOUBTED BY THE LOWER AUTHORITIES. THE ONLY DIS PUTE IS WITH REGARD TO THE PERIOD OF APPROVAL. AS PER THE CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY IN FORM 3CM ASSESSEES R&D FACILITY HAS BEEN APPROVED FOR THE PERIOD FROM 01- 04-2011 TO 31-03-2013 ON THE BASIS OF APPLICATION F ILED BY THE ASSESSEE IN PRESCRIBED FORM 3CK ON 12-08-2011. THEREFORE, WE A RE OF THE VIEW THAT THE ASSESSEE IS NOT ENTITLED FOR WEIGHTED DEDUCTIONS TO WARDS ITS R& EXPENDITURE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 9. COMING TO THE CASE LAWS RELIED UPON BY THE ASSESSEE , THE ASSESSEE HAS RELIED UPON THE DECISION OF HONBLE GUJARAT HIGH CO URT IN THE CASE OF CLARIS LIFE SCIENCES LTD (SUPRA). WE HAVE GONE THROUGH THE CAS E LAWS RELIED UPON BY THE ASSESSEE IN THE LIGHT OF THE FACTS OF THE PRESENT C ASE AND FIND THAT THE FACTS OF THE CASE RELIED UPON BY THE ASSESSEE IN CIT VS CLAR IS LIFE SCIENCES LTD (SUPRA) IS ALTOGETHER DIFFERENT FROM THE PRESENT CASE. IN THE CASE BEFORE THE HONBLE 10 ITA NO.4567/MUM/2016 GUJARAT HIGH COURT, THE ASSESSEE HAS FILED APPLICAT ION FOR APPROVAL OF ITS R&D FACILITY ON 07-08-2000. HOWEVER, THE APPROVAL WAS GIVEN ONLY ON 27-02-2001. SINCE BOTH THE DATE OF APPLICATION OF THE APPROVAL BY THE COMPETENT AUTHORITY FELL WITHIN THE SAME PREVIOUS YEAR, THE HONBLE COU RT TOOK A STAND THAT THE DATE OF APPROVAL CANNOT BE TAKEN AS CUT OFF DATE FOR THE PURPOSE OF SECTION 35(2AB) AND THE ENTIRE EXPENDITURE INCURRED DURING THE PREV IOUS YEAR IS ENTITLED FOR WEIGHTED DEDUCTION U/S 35(2AB) OF THE ACT. IN THIS CASE, THE ASSESSEE HAS FILED APPLICATION ON 12-08-2011 WHICH FALLS UNDER THE ASS ESSMENT YEAR 2012-13 AND THE COMPETENT AUTHORITY HAS ACCORDED ITS APPROVAL W EF 01-04-2011 RELEVANT TO AY 2012-13. THEREFORE, THE CASE LAW RELIED UPON BY THE ASSESSEE CANNOT BE APPLIED TO THE FACTS OF THE ASSESSEES CASE. THE A SSESSEE HAS ALSO RELIED UPON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF MARUTI INDIA LTD VS UOI & ORS (SUPRA). WE HAVE GONE THROUGH THE CASE LAWS RELIED UPON BY THE ASSESSEE IN THE LIGHT OF THE PRESENT CASE AND FIND THAT THE HONBLE DELHI HIGH COURT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE HAS DIRECTED THE COMPETENT AUTHORITY, I.E. DSIR HAS BEEN DIRECTED TO ISSUE A FRESH CERTIFICATION IN FORM 3CH IN RESPECT OF THE EXPENDITURE AND ALSO DIR ECTED RESPONDENT NO.2, I.E. THE AO TO GIVE CONSEQUENTIAL DEDUCTION AS PER SECTI ON 35(2AB) OF THE ACT. THE FACTS ARE ALTOGETHER DIFFERENT. SINCE THE COMPETEN T AUTHORITY IS NOT A PARTY BEFORE US, WE DO NOT HAVE ANY POWER TO GIVE DIRECTI ONS TO THE COMPETENT 11 ITA NO.4567/MUM/2016 AUTHORITY, I.E. THE SECRETARY, DEPARTMENT OF SCIENT IFIC AND INDUSTRIAL DEVELOPMENT & RESEARCH, GOVERNMENT OF INDIA TO GIV E POST FACTO APPROVAL TO THE ASSESSEE FOR ITS R&D FACILITY. THEREFORE, WE A RE OF THE VIEW THAT THE CASE LAWS RELIED UPON BY THE ASSESSEE HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE. 10. IN THIS VIEW OF THE MATTER AND CONSIDERING THE FACT S AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS NOT ENTITLED FOR WEIGHTED DEDUCTION U/S 35(2AB) OF THE INCOME-TAX AC T, 196 FOR ITS R&D EXPENDITURE FOR THE ASSESSMENT YEAR 2011-12. THE C IT(A), AFTER CONSIDERING RELEVANT FACTS HAS RIGHTLY UPHELD THE DISALLOWANCE OF WEIGHTED DEDUCTION CLAIMED BY THE ASSESSEE U/S 35(2AB). WE DO NOT FIN D ANY INFIRMITY IN THE ORDER OF THE CIT(A). HENCE, WE ARE INCLINED TO UPHOLD TH E ORDER OF CIT(A) AND HENCE, REJECT THE GROUND RAISED BY THE ASSESSEE. 11. THE ASSESSEE HAS RAISED GROUND NO.4 CHALLENGING THE ACTION OF THE LD.CIT(A) IN CONFIRMING ADDITION MADE BY THE AO TOW ARDS CAPITAL EXPENDITURE OF RS.16,55,318. DURING THE COURSE OF HEARING, THE LD .DR FOR THE ASSESSEE SUBMITTED THAT HE DID NOT WANT TO PRESS GROUND NO.4 ; HENCE, WE DISMISS THE GROUND, AS NOT PRESSED. 12 ITA NO.4567/MUM/2016 12. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER, 2017. SD/- SD/- (D.T. GARASIA) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 11 TH OCTOBER, 2017 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI