Ita/43/2017 Of The Principal Commissioner Of Income Tax, Kochi -I v. 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 31 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,COCHINBENCH, ERNAKULAM APPELLANT/APPELLANT: THE PRINCIPAL COMMISSIONER OF INCOME TAX, KOCHI -ICENTRAL 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 TAXCHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT RESPONDENT/RESPONDENT: M/S.APOLLO TYRES LTD6TH 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 MARKOSSRI.ABRAHAM JOSEPH MARKOSSRI.ISAAC THOMASSRI.P.G.CHANDAPILLAI ABRAHAMSHRI.VIPIN ANTO H.M.SHRI.ALEXANDER JOSEPH MARKOSSHRI.SHARAD JOSEPH KODANTHARA THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON31.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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 asfollows: 1."Whether on the facts and in the circumstances ofthe case and on an interpretation of Section 32(1)(iia) readwith the second proviso, is the Hon'ble ITAT right in lawin holding that the left over additional depreciationbrought forward from immediately preceding assessmentyear has to be allowed in the subsequent assessment yearand is nto the above finding against law and perverse?2.Whether on the facts and in circumstances of thecase is the Hon'ble ITAT is right in law in allowing theassessee's claim of weighted deduction under Section35(2AB) in respect of the salary paid on outdoor R & Dfacility without qualification of the DSIR and that toofollowing conflicting case laws. 3."Whether on the facts and in the circumstances ofthe case, is the Hon'ble ITAT right in law and fact in holding that DG Power Generation Units constitutedan "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 ofthe assessee and against the revenue. Substantial Question No.2 An identical question raised by the assessee for theassessment year 2010-2011 was considered by this Court in ITAppeal No.40 of 2017. The view taken by the Tribunal wasaccepted by adopting the same reasoning. The question isanswered in favour of assessee and against the revenue. For theabove discussion, IT Appeal No.43/2017 is dismissed. Sd/- S.V.BHATTI JUDGE sd/- VIJU ABRAHAM JUDGE ITA No.43 of 2017 4 APPENDIX OF ITA 43/2017