Whether Dismissal Of Writ On Ground Of Delay Can Come In Way For Party To File Another Plea Involving Similar Contention? Supreme Court Agrees To Examine

The bench of Justices AM Khanwilkar and CT Ravikumar while issuing notice in SLP assailing Kerala High Court's order said, "The fact that decision in the petitioner's earlier petition had attained finality, will not come in the way of the petitioner because that petition was dismissed merely on the ground of delay."

The petitioner's counsel had contended that the High Court had non-suited the petitioner merely because of the rejection of the earlier writ petition involving similar contention and that the petitioner in another plea was relying on the decisions of other High Courts which had taken a contrary view.

Case Before Kerala High Court

Apollo Tyres had set up two in-house Research and Development (R&D) facilities, one at Perambra (Cochin) and another at Limda (Vadodara) and had been claiming admissible deduction, i.e., the revenue and capital expenditure incurred by the assessee for maintaining and running the R&D facilities, under Section 35(1)(i) and (2)(ia) of the Act.

On 12.11.2008 Apollo had applied to the competent authority for approval. Although the DSIR granted approval for the period April 1, 2007 to March 31, 2010 by incorporating the condition that the Research and Development facility will be approved for the purpose of Section 35(2AB) from subject to the conditions certain conditions.

The authority had further said that the assessee was not entitled to the weighted deduction of 150% under Section 35(2AB) which was affirmed by the Tribunal.

Aggrieved, Apollo Tyres Ltd had approached the High Court. The same was admitted by the Court to decide, "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in confirming the disallowance of deduction under Section 35(2AB) of the Income Tax Act?"

Noting that the assessee, on the strength of a right in its favour or infirmity in the stipulation of period by DSIR had availed the writ remedy, the High Court had dismissed the tax appeals.

"The conclusion recorded against the assessee by the judgment in W.P.(C) No.13338/2009 bars the assessee from re-agitating the same issue in subject assessment proceedings. The request of the assessee was to give approval with effect from 01.04.2004. For available reasons, and now approved by the judgment in W.P.(C) No.13338/2009, it has been granted with effect from 01.04.2007 to 31.03.2010. This conclusion is confirmed by the Delhi High Court. The effort of the assessee again is in respect of the very same Assessment Year for which a different conclusion is attempted to be invited from this Court. The argument for weighted depreciation is rightly rejected by all the authorities under the Act," bench of Justices SV Bhati and Viju Abraham had observed.

Case Title: Apollo Tyres Ltd v. The Assistant Commissioner Of Income Tax| Petitions for Special Leave to Appeal (C) Nos. 21096-21097/2021

Coram: Justices AM Khanwilkar and CT Ravikumar