2008 (5) TMI 257

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....Senior Advocate (Rajiv Tyagi, Advocates with him) for the respondent. ORDER 1. Leave granted. 2. This Civil Appeal is filed by the Revenue against the order passed by the Punjab and Haryana High Court in I.T.A. No. 131/2004. The impugned decision is dated 18th May, 2006. 3. M/s. Swaraj Engines Ltd. (respondent herein) entered into an agreement of transfer of technology know-how and tra....

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....of Section 35AB of the Income Tax Act needs to be considered. 5. On the first question, it has been vehemently urged by Shri Iyer, learned senior counsel on behalf of the respondent-assessee, that the High Court was right in dismissing the Department's appeal in limine following its earlier judgment in the case of CIT v. JCT Electronics Ltd. [2008] 301 ITR 290 (P&H) in I.T.A. No.383/2004. On th....

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....apital in nature, then the question of amortization and spread over, as contemplated by Section 35AB, would certainly come into play. Therefore, in our view, it would not be correct to say that in this case, interpretation of Section 35AB was not in issue. Our above reasoning is further fortified by the question framed by the High Court in the impugned judgment which reads as under: "Whether on....

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.... 6. On bare reading of the said question, it is clear that applicability of Section 35AB in the context of royalty paid to Kirloskar as a percentage of the net sale price being revenue or capital in nature and depending on the answer to that question, the applicability of Section 35AB also arose for determination before the High Court. Be that as it may, the said question needs to be decided auth....