Itxa-1023 v. Dr.d.y. Chandrachud,J

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1023 OF 2009 The Commissioner of Income Tax City VIVs. M/s. Glaxo SmithKline Pharmaceuticals Ltd. ..Appellant. ..Respondent. Mr. Suresh Kumar for the Appellant. Mr. P.J.Pardiwala, Sr. Advocate with Mr. Ashish Rao and Mr. Tejas Shah i/by M & M Legal for the Respondent. CORAM: DR.D.Y. CHANDRACHUD & M.S.SANKLECHA, JJ. March 5, 2012 P.C. This appeal arises from a decision of the Income Tax Appellate Tribunal dated 6 December 2006 in relation to Assessment year 1988-89. Three Questions of Law have been framed by the Revenue as under: (a)Whether on the facts and in the circumstances of the case, and in law, the Hon’ble Tribunal was justified in law in holding that share ITXA-1023 issue expenses are attributable to acquisition of assets in the form of Plant and Machinery and hence eligible for depreciation and investment allowance, without considering the fact that the said expenses were actually incurred for the purpose of diluting the share of the parent company in order to comply with FERA provisions, when there is no nexus between the share issue expenses and the investment in Plant & Machinery; (b)Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal was justified in holding that dividend of Rs.7,23,328/- received should be reduced from the total allowable income for the purpose of deduction u/s 32AB of the Income Tax Act; (c)Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal was justified in law in holding that the assessee is entitled to the deduction in respect of enhanced liability of Rs.5679.29 lacs being payment of interest to be made under the Drug Price Control order, 1979 notwithstanding the fact that the provisions of section 43B were not complied with? 2 The learned Counsel appearing on behalf of the Revenue states that question (a) and (c) would be covered against the Revenue by the decision in companion Income Tax Appeal No.972 of 2009 for Assessment Year 1986-87. Having regard to this statement, no substantial question of law would arise on Questions (a) and (c). As regards question (b), the Tribunal has noted the statement of both the learned Counsel appearing on behalf of the Assessee and the Revenue that the issue was covered against the Revenue by the decision of the Supreme Court in Apollo Tyres Ltd. Vs. CIT (2002) 255 ITR Page 273. We also notethatthedecisioninApolloTyres has been followed by a Division bench of this Court in Commissioner of Income Tax Vs. Parle Biscuits Ltd. [2006] 282 ITA 547 in which inter alia the same question arose. No substantial question of law would arise. The appeal is accordingly dismissed. No order as to costs. (DR.D.Y. CHANDRACHUD,J.) (M.S.SANKLECHA, J.)