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of <h1>Supreme Court refers Section 35AB Income Tax Act case to High Court for analysis</h1> <h3>COMMISSIONER OF INCOME-TAX Versus SWARAJ ENGINES LTD.</h3> COMMISSIONER OF INCOME-TAX Versus SWARAJ ENGINES LTD. - [2009] 309 ITR 443 (SC) Issues:1. Applicability of Section 35AB of Income Tax Act, 1961.2. Determination of whether the expenditure is revenue or capital in nature.Analysis:1. Applicability of Section 35AB:The Civil Appeal before the Supreme Court stemmed from an order by the Punjab and Haryana High Court in relation to M/s. Swaraj Engines Ltd.'s claim for deduction of royalty payment made under a technology transfer agreement. The primary issue was whether Section 35AB of the Income Tax Act, 1961 was raised by the Assessing Officer. The respondent contended that the High Court rightly dismissed the Department's appeal, citing a previous judgment. The Court noted the confusion regarding the applicability of Section 35AB, emphasizing the need to determine the nature of the expenditure as either revenue or capital. The Court highlighted that if the expenditure is revenue in nature, Section 35AB may not apply, but if it is capital, then amortization and spread over would be relevant. The Court remitted the matter to the High Court for authoritative consideration, given the importance of the question post the insertion of Section 35AB.2. Nature of Expenditure - Revenue or Capital:The second issue revolved around whether the expenditure in question was revenue or capital in nature. The Supreme Court refrained from expressing an opinion on this matter, leaving it for the High Court to decide after analyzing the agreement between the parties. Based on this determination, the High Court would then assess the applicability of Section 35AB of the Income Tax Act. The Court kept all contentions on both sides open for the High Court's consideration. Ultimately, the Supreme Court set aside the High Court's judgment and remitted the case for fresh consideration in accordance with the law, allowing the appeal with no order as to costs.
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