D.C.I.T Cir - 3(1), Kolkata V. M/s The Peerless General Finance & Investment Co Ltd, Kolkata

ITA 1470/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2307 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 14-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Rule 8D; Capital Gains; CHAPTER IV
• Section: 14A; 40(a)(ia); 37(1); 80G; 194C; 250; 194J; 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI ABY T. VARKEY, JUDICIAL MEMBER) ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013-14 & 2015-16 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-12(1), KOLKATA.............APPELLANT VS. M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD.....................RESPONDENT 3, ESPLANADE EAST KOLKATA 700 069 [PAN : AABCT 3043 L] APPEARANCES BY: SHRI SUPRIYO PAL, JCIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE SHRI S.K. TULSIYAN, ADV. & SUBRATA DEY, CA, APPEARED ON BEHALF OF THE ASSESSEE. . DATE OF CONCLUDING THE HEARING : OCTOBER 31 ST , 2019 DATE OF PRONOUNCING THE ORDER : DECEMBER 5 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- BOTH THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 1, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 08/03/2019, FOR THE ASSESSMENT YEAR 2013-14 & DT. 04/03/2019 FOR THE ASSESSMENT YEAR 2015-16. 2. AT THE OUTSET WE FIND THAT THERE IS A DELAY OF 5 (FIVE) DAYS IN FILING OF BOTH THESE APPEALS BY THE REVENUE. AFTER PERUSING THE PETITION FOR CONDONATION, WE ARE CONVINCED THAT THE DEPARTMENT WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL ON TIME. HENCE THE DELAY IS CONDONED AND THE APPEALS ARE ADMITTED. 2.1. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- 3. WE FIRST TAKE THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2013-14. 4. ON GROUND NO. 1, WE FIND THAT THE LD. CIT(A), AT PARA 23 HAS STATED AS FOLLOWS:- 23. IN GROUND OF APPEAL NO. 5 PERTAINS TO NOT CARRYING FORWARD THE LONG TERM CAPITAL LOSS OF RS.160,65,10,531/-. THIS IS AGREED. THE LD. A.O. MAY CONSULT THE FILES OF THE PREVIOUS YEARS AND IF THE AMOUNT IS DUE AND UNCLAIMED, THE SAME MAY BE ALLOWED. 4.1. WE FIND NO INFIRMITY IN THESE DIRECTIONS OF THE LD. CIT(A). THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE AND LAW. HENCE, WE DISMISS THIS GROUND OF REVENUE. 5. GROUND NOS. 2, 3 & 4 ARE ON THE ISSUE OF DISALLOWANCE U/S 14A R.W.R. 8D(2) OF THE ACT. THE LD. CIT(A) AT PARA 8 PAGE 5 OF HIS ORDER, HAS STATED AS FOLLOWS: 8. IN VIEW O F THE ABOVE AND IN THE ABSENCE OF ANY SATISFACTION NOTE RECORDED BY THE LD. A.O., THE ADDITION MADE U/S 14A OF THE INCOME LAW. 5.1. THIS PARAGRAPH, HAS NOT BEEN SPECIFICALLY CHALLENGED BEFORE US. THE LD. D/R, COULD NOT DEMONST RATE THAT THE ASSESSING OFFICER HAS RECORDED SATISFACTION, AS REQUIRED UNDER LAW, PRIOR TO INVOKING RULE 8D OF THE INCOME TAX RULES, 1962 (RULES). THUS, THIS ISSUE IS COVERED IN TRIBUNAL IN THE CASE OF REI AGRO WHEREIN IT WAS HELD AS UNDER: SECTION 14A OF THE INCOME RULES, 1962 - EXPENDITURE INCURRED IN RELATION TO INCOME NOT INCLUDIBLE IN TOTAL INCOME [RULE 8D] OFFICER WAS NOT SATISFIED WITH CORRECTNESS OF CLAIM MADE BY ASSESSEE THAT NO EXPENDITURE WAS INCURRED IN RELATION TO SUCH INCOME WHICH DID NOT FORM PART OF TOTAL INCOME, HE COULD INVOKE ON THAT ISSUE WITH REGARD TO ACCOUNTS OF ASSESSEE DISALLOWANCE UNDER SECTION 14A READ WITH RULE 8D(2)(III) CAN BE COMPUTED ONLY BY TAKING INTO CONSIDERATION AVERAGE VALUE OF INVESTMENT APPE BALANCE SHEET AS ON FIRST AND LAST DAY OF PREVIOUS YEAR FROM WHICH INCOME NOT FALLING WITHIN TOTAL INCOME HAS BEEN EARNED ASSESSING OFFICER HAD TAKEN INTO CONSIDERATION ENTIRE INVESTMENT MADE BY ASSESSEE DURING RELEVAN MATTER WAS TO BE RESTORED FOR RECOMPUTATION 6. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE DISMISS THIS GROUN THE REVENUE. 7. GROUND NO. 5 IS AGAINST THE DELETION OF DISALLOWANCE MADE ACT. 7.1. THE LD. CIT(A) AT PARA 19 HELD AS FOLLOWS: 2 ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 M/S. THE PEERLESS GENERAL FINANCE & WE FIND NO INFIRMITY IN THESE DIRECTIONS OF THE LD. CIT(A). THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE AND ALLOW THE SAME, IN ACCORDANCE WITH LAW. HENCE, WE DISMISS THIS GROUND OF REVENUE. GROUND NOS. 2, 3 & 4 ARE ON THE ISSUE OF DISALLOWANCE U/S 14A R.W.R. 8D(2) OF THE ACT. THE LD. CIT(A) AT PARA 8 PAGE 5 OF HIS ORDER, HAS STATED AS FOLLOWS: F THE ABOVE AND IN THE ABSENCE OF ANY SATISFACTION NOTE RECORDED BY THE LD. A.O., THE ADDITION MADE U/S 14A OF THE INCOME - TAX ACT, 1961, IS NOT AS PER THIS PARAGRAPH, HAS NOT BEEN SPECIFICALLY CHALLENGED BEFORE US. THE LD. D/R, RATE THAT THE ASSESSING OFFICER HAS RECORDED SATISFACTION, AS REQUIRED UNDER LAW, PRIOR TO INVOKING RULE 8D OF THE INCOME TAX RULES, 1962 (RULES). THUS, THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THIS BENCH OF THE REI AGRO LTD. VS. DCIT [2013] 144 ITD 141 (KOLKATA WHEREIN IT WAS HELD AS UNDER: - SECTION 14A OF THE INCOME - TAX ACT, 1961, READ WITH RULE 8D OF THE INCOME EXPENDITURE INCURRED IN RELATION TO INCOME NOT INCLUDIBLE IN INCOME [RULE 8D] - ASSESSMENT YEAR 2008-09 - WHETHER, WHERE ASSESSING OFFICER WAS NOT SATISFIED WITH CORRECTNESS OF CLAIM MADE BY ASSESSEE THAT NO EXPENDITURE WAS INCURRED IN RELATION TO SUCH INCOME WHICH DID NOT FORM PART OF TOTAL INCOME, HE COULD INVOKE SECTION 14A ONLY AFTER RECORDING SATISFACTION ON THAT ISSUE WITH REGARD TO ACCOUNTS OF ASSESSEE - HELD, YES DISALLOWANCE UNDER SECTION 14A READ WITH RULE 8D(2)(III) CAN BE COMPUTED ONLY BY TAKING INTO CONSIDERATION AVERAGE VALUE OF INVESTMENT APPE BALANCE SHEET AS ON FIRST AND LAST DAY OF PREVIOUS YEAR FROM WHICH INCOME NOT FALLING WITHIN TOTAL INCOME HAS BEEN EARNED - HELD, YES - WHETHER, WHERE ASSESSING OFFICER HAD TAKEN INTO CONSIDERATION ENTIRE INVESTMENT MADE BY ASSESSEE DURING RELEVAN T YEAR FOR CALCULATION OF DISALLOWANCE UNDER RULE 8D, MATTER WAS TO BE RESTORED FOR RECOMPUTATION CONSISTENT WITH THE VIEW TAKEN THEREIN, WE DISMISS THIS GROUN D NOS. 2, 3 & 4 OF GROUND NO. 5 IS AGAINST THE DELETION OF DISALLOWANCE MADE U/S 40(A)(IA) OF THE THE LD. CIT(A) AT PARA 19 HELD AS FOLLOWS: - ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 -14 & 2015-16 M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD WE FIND NO INFIRMITY IN THESE DIRECTIONS OF THE LD. CIT(A). THE ASSESSING OFFICER ALLOW THE SAME, IN ACCORDANCE WITH GROUND NOS. 2, 3 & 4 ARE ON THE ISSUE OF DISALLOWANCE U/S 14A R.W.R. 8D(2) OF THE ACT. THE LD. CIT(A) AT PARA 8 PAGE 5 OF HIS ORDER, HAS STATED AS FOLLOWS: - F THE ABOVE AND IN THE ABSENCE OF ANY SATISFACTION NOTE RECORDED TAX ACT, 1961, IS NOT AS PER THIS PARAGRAPH, HAS NOT BEEN SPECIFICALLY CHALLENGED BEFORE US. THE LD. D/R, RATE THAT THE ASSESSING OFFICER HAS RECORDED SATISFACTION, AS REQUIRED UNDER LAW, PRIOR TO INVOKING RULE 8D OF THE INCOME TAX RULES, 1962 (RULES). FAVOUR OF THE ASSESSEE BY THE ORDER OF THIS BENCH OF THE [2013] 144 ITD 141 (KOLKATA - TRIB.) , TAX ACT, 1961, READ WITH RULE 8D OF THE INCOME -TAX EXPENDITURE INCURRED IN RELATION TO INCOME NOT INCLUDIBLE IN WHETHER, WHERE ASSESSING OFFICER WAS NOT SATISFIED WITH CORRECTNESS OF CLAIM MADE BY ASSESSEE THAT NO EXPENDITURE WAS INCURRED IN RELATION TO SUCH INCOME WHICH DID NOT FORM PART SECTION 14A ONLY AFTER RECORDING SATISFACTION HELD, YES -WHETHER DISALLOWANCE UNDER SECTION 14A READ WITH RULE 8D(2)(III) CAN BE COMPUTED ONLY BY TAKING INTO CONSIDERATION AVERAGE VALUE OF INVESTMENT APPE ARING IN BALANCE SHEET AS ON FIRST AND LAST DAY OF PREVIOUS YEAR FROM WHICH INCOME NOT WHETHER, WHERE ASSESSING OFFICER HAD TAKEN INTO CONSIDERATION ENTIRE INVESTMENT MADE BY T YEAR FOR CALCULATION OF DISALLOWANCE UNDER RULE 8D, D NOS. 2, 3 & 4 OF U/S 40(A)(IA) OF THE 19. IN VIEW OF THE ABOVE SUBMISSIONS THAT THERE WAS NO REQUIREMENT TO DEDUCT TDS ON THE PAYMENT AND AS SUCH NO DISALLOWANCE U/S 40(A)(IA) OF THE INCOME ACT, 1961 IS WARRANTED. SUBMISSIONS MADE BY THE ASSESSEE. IT IS THE REQUIREMENT OF LAW THAT TDS CAN BE DEDUCTED ONLY WHEN THE PROVISIONS OF TDS ARE APPLICABLE TO THE FACTS OF THE CASE. IN THE INSTANT CASES, AFTER CONSIDERING T ASSESSEE, IT IS CRYSTAL CLEAR THAT TDS PROVISIONS WERE NOT APPLICABLE. AS SUCH, NO TDS WERE REQUIRED TO BE DEDUCTED, IF NOT MANDATED BY THE STATUTE. THUS, NO ADDITIONS TO INCOME COULD HAVE BEEN MADE U/S 40(A)(IA) 1961 AS HAS BEEN DONE BY THE LD. A.O. 8. HE ACCEPTED THE CLAIM OF THE ASSESSEE THAT PAYMENT MADE TO PARTIES TO THE TUNE OF RS.30,000/- WERE NOT A SINGLE TRANSACTION AND HENCE, SECTION 194C OF THE ACT, DOES NOT APPLY. AS REGARDS PAYME THAT TDS @ 1% WAS DEDUCTED ON THE PAYMENTS AND IS NOT APPLICABLE. IN CASE OF PAYMENTS TO NG GOSAI PRINTING PVT. LTD., AS IT WAS PURCHASE OF GOODS, HE HELD THAT THE P REGARDING THE PAYMENT TO JIVAN RATAN CHATTERJEE LEGAL, HE SUBMITTED THAT THE PAYMENT OF RS.31517/- , WAS TOWARDS ADVOCATE FEES AND SERVICE TAX AND AS THE ADVOCATE FEES WAS LESS THAN RS.30,000/ SIMILARLY, HE HAS ANALYSED EACH AND EVERY PAYMENT AND CAME TO A CONCLUSION THAT PROVISION OF TAX DEDUCTION AT SOURCE DO NOT APPLY 8.1. THE LD. D/R, COULD NOT CONTRADICT THESE WE UP HOLD THE SAME AND DISMISS GROUND NO. 5 OF THE REVENUE. 9. GROUND NO. 6 IS GENERAL IN NATURE. 10. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1469/KOL/2019; ASSESSMENT YEAR 2013-14, IS DISMISSED. 11. NOW WE TAKE UP THE REVENUES APPEAL FOR THE ASSESSMEN 12. THE GROUNDS OF APPEAL READS AS FOLLOWS: 1. LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 2,92,66,350 14 A READ RULE 8D OF THE I. T. RULE. 3 ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 M/S. THE PEERLESS GENERAL FINANCE & 19. IN VIEW OF THE ABOVE SUBMISSIONS THAT THERE WAS NO REQUIREMENT TO DEDUCT TDS ON THE PAYMENT AND AS SUCH NO DISALLOWANCE U/S 40(A)(IA) OF THE INCOME ACT, 1961 IS WARRANTED. I HAVE GONE THROUGH THE ORDER OF THE ID. A.O. AND THE SUBMISSIONS MADE BY THE ASSESSEE. IT IS THE REQUIREMENT OF LAW THAT TDS CAN BE DEDUCTED ONLY WHEN THE PROVISIONS OF TDS ARE APPLICABLE TO THE FACTS OF THE CASE. IN THE INSTANT CASES, AFTER CONSIDERING T HE SUBMISSIONS MADE BY THE ID. A.R. OF THE ASSESSEE, IT IS CRYSTAL CLEAR THAT TDS PROVISIONS WERE NOT APPLICABLE. AS SUCH, NO TDS WERE REQUIRED TO BE DEDUCTED, IF NOT MANDATED BY THE STATUTE. THUS, NO ADDITIONS TO INCOME COULD HAVE BEEN MADE U/S 40(A)(IA) OF THE INCOME 1961 AS HAS BEEN DONE BY THE LD. A.O. HE ACCEPTED THE CLAIM OF THE ASSESSEE THAT PAYMENT MADE TO PARTIES TO THE TUNE WERE NOT A SINGLE TRANSACTION AND HENCE, SECTION 194C OF THE ACT, DOES NOT APPLY. AS REGARDS PAYME NTS TO VYAPAR BHARATI PRESS, HE ACCEPTED THE SUBMISSION THAT TDS @ 1% WAS DEDUCTED ON THE PAYMENTS AND HENCE SECTION 40(A)(IA) OF THE ACT IS NOT APPLICABLE. IN CASE OF PAYMENTS TO NG GOSAI PRINTING PVT. LTD., AS IT WAS PURCHASE OF GOODS, HE HELD THAT THE P ROVISIONS OF SECTION 194C OF THE ACT, DOES NOT APPLY. REGARDING THE PAYMENT TO JIVAN RATAN CHATTERJEE LEGAL, HE SUBMITTED THAT THE , WAS TOWARDS ADVOCATE FEES AND SERVICE TAX AND AS THE ADVOCATE FEES WAS LESS THAN RS.30,000/ -, SECTION 194J OF THE ACT, DOES NOT APPLY. SIMILARLY, HE HAS ANALYSED EACH AND EVERY PAYMENT AND CAME TO A CONCLUSION THAT PROVISION OF TAX DEDUCTION AT SOURCE DO NOT APPLY . THE LD. D/R, COULD NOT CONTRADICT THESE FACTUAL FINDINGS OF THE LD. CIT(A). THUS, HOLD THE SAME AND DISMISS GROUND NO. 5 OF THE REVENUE. GROUND NO. 6 IS GENERAL IN NATURE. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1469/KOL/2019; ASSESSMENT NOW WE TAKE UP THE REVENUES APPEAL FOR THE ASSESSMEN T YEAR 2015 THE GROUNDS OF APPEAL READS AS FOLLOWS: - LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 2,92,66,350 A READ RULE 8D OF THE I. T. RULE. ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 -14 & 2015-16 M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD 19. IN VIEW OF THE ABOVE SUBMISSIONS THAT THERE WAS NO REQUIREMENT TO DEDUCT TDS ON THE PAYMENT AND AS SUCH NO DISALLOWANCE U/S 40(A)(IA) OF THE INCOME -TAX I HAVE GONE THROUGH THE ORDER OF THE ID. A.O. AND THE SUBMISSIONS MADE BY THE ASSESSEE. IT IS THE REQUIREMENT OF LAW THAT TDS CAN BE DEDUCTED ONLY WHEN THE PROVISIONS OF TDS ARE APPLICABLE TO THE FACTS OF THE CASE. IN HE SUBMISSIONS MADE BY THE ID. A.R. OF THE ASSESSEE, IT IS CRYSTAL CLEAR THAT TDS PROVISIONS WERE NOT APPLICABLE. AS SUCH, NO TDS WERE REQUIRED TO BE DEDUCTED, IF NOT MANDATED BY THE STATUTE. THUS, NO OF THE INCOME -TAX ACT, HE ACCEPTED THE CLAIM OF THE ASSESSEE THAT PAYMENT MADE TO PARTIES TO THE TUNE WERE NOT A SINGLE TRANSACTION AND HENCE, SECTION 194C OF THE ACT, DOES NTS TO VYAPAR BHARATI PRESS, HE ACCEPTED THE SUBMISSION HENCE SECTION 40(A)(IA) OF THE ACT IS NOT APPLICABLE. IN CASE OF PAYMENTS TO NG GOSAI PRINTING PVT. LTD., AS IT WAS PURCHASE ROVISIONS OF SECTION 194C OF THE ACT, DOES NOT APPLY. REGARDING THE PAYMENT TO JIVAN RATAN CHATTERJEE LEGAL, HE SUBMITTED THAT THE , WAS TOWARDS ADVOCATE FEES AND SERVICE TAX AND AS THE 194J OF THE ACT, DOES NOT APPLY. SIMILARLY, HE HAS ANALYSED EACH AND EVERY PAYMENT AND CAME TO A CONCLUSION THAT FINDINGS OF THE LD. CIT(A). THUS, IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1469/KOL/2019; ASSESSMENT T YEAR 2015 -16. LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 2,92,66,350 /- U/S. 2. THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 29,09,680/ SALE OF RIGHT PROPERTY AND CARRIED FORWARD THE LOSS TO FUTURE YEARS WHERE AS THE ASSESSEE CLAIMED INDEXED 3. THE LD. CIT(A) ERRED IN RS. 55,42,400 AS EXPENDITURE INCURRED BY THE ASSESSEE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION. ANY EXPENDITURE INCURRED BY AN ASSESSEE ON THE ACTIVITIES RELATING TO CORPORATE SOCIAL RESPONSIBI (18 OF 2013) SHALL NOT BE DEEMED TO BE AN EXPENDITURE INCURRED BY THE ASSESSEE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION. 4. THE LD. CIT(A) ERRED IN LAW IN ALLOWING THE DEDUCTION OF EDUCATION 95,23,489/- U/S. 37(1) OF THE ACT. WHICH HAS HELD THAT EDUCATION CESS DOES NOT FORM PART OF TAX AND HENCE OUTSIDE THE AMBIT OF SECTION 40( 1) (II) WHICH COVERS TAX ONLY. 5. THE APPELLANT CRAVES LEAVE TO MAKE ANY ADDITION, ALTERATION OR M THE GROUNDS EITHER BEFORE THE APPELLATE PROCEEDINGS, OR IN THE C PROCEEDINGS. 13. GROUND NO. 1 IS AGAINST THE DELETION OF AN ADDITION MADE U/S 14A R.W.R. 8D. IN THIS ALSO, AS FOR THE ASSESSMENT YEAR 2013 CONCLUSION THAT THE ASSESSING OFFICER HAS NOT RECORDED SATISFACTION RULE 8D OF THE RULES. CONSISTENT WITH THE VIEW TAKEN BY US FOR THE ASSESSMENT YEAR 2013- 14, WE UPHOLD THE FINDING OF THE LD. CIT(A) AND DISMISS REVENUE AS THE LD. D/R WAS NOT ABLE TO DEMONSTRATE THAT THE ASSESSING OFFICER HAS RECORDED SATISFACTION AS REQUIRED BY LAW, PRIOR TO INVOKING RULE 8D OF THE INCOME TAX RULES. 14. GROUND NO. 2, IS REGARDING THE DELETION OF AN ADDITION MAD OF RIGHTS IN PROPERTY AND CARRY FORWARD OF LOSS TO FUTURE YEARS. 15. THE ASSESSEE HAS SOLD THE RIGHT AND 2014- 15. THE ASSESSEE DECLARED THE SAME AS INCOME FROM CAPITAL GAIN IN ITS RETURN OF I NCOME FOR THESE ASSESSMENT YEARS. THE ASSESSING OFFICER HAS ACCEPTED THIS CLAIM OF THE ASSESSEE AND ASSESSED THE INCOME UNDER THE HEAD CAPITAL GAINS. DURING THE CURRENT ASSESSMENT YEAR 2015 OF RIGHT IN PROPERTY AS INCOME FROM BUSINESS. THE ASSESSEE DISPUTED THE SAME BEFORE THE LD. CIT(A). ITS CASE IS THAT THE INCOME IN QUESTION IS ASSESSABLE UNDER THE HEAD CAPITAL GAINS AND NOT UNDER THE HEAD INCOME FROM BUSINESS OF PROFESSION. HE RELIES ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF 4 ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 M/S. THE PEERLESS GENERAL FINANCE & THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 29,09,680/ SALE OF RIGHT PROPERTY AND CARRIED FORWARD THE LOSS TO FUTURE YEARS WHERE AS THE INDEXED LONG TERM CAPITAL LOSS OF RS. 36,60,000/-. THE LD. CIT(A) ERRED IN LAW IN ALLOWING THE DEDUCTION OF CSR EXPENDITURE PAID OF RS. 55,42,400 AS EXPENDITURE INCURRED BY THE ASSESSEE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION. ANY EXPENDITURE INCURRED BY AN ASSESSEE ON THE ACTIVITIES RELATING TO CORPORATE SOCIAL RESPONSIBI LITY REFERRED TO IN SECTION 135 OF THE COMPANIES ACT, 2013 (18 OF 2013) SHALL NOT BE DEEMED TO BE AN EXPENDITURE INCURRED BY THE ASSESSEE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION. 4. THE LD. CIT(A) ERRED IN LAW IN ALLOWING THE DEDUCTION OF EDUCATION CESS PAID OF RS. U/S. 37(1) OF THE ACT. WHICH HAS HELD THAT EDUCATION CESS DOES NOT FORM PART OF TAX AND HENCE OUTSIDE THE AMBIT OF SECTION 40( 1) (II) WHICH COVERS TAX ONLY. 5. THE APPELLANT CRAVES LEAVE TO MAKE ANY ADDITION, ALTERATION OR M ODIFICATION ETC. OF THE GROUNDS EITHER BEFORE THE APPELLATE PROCEEDINGS, OR IN THE C OURSE OF APPELLATE GROUND NO. 1 IS AGAINST THE DELETION OF AN ADDITION MADE U/S 14A R.W.R. 8D. IN THIS ALSO, AS FOR THE ASSESSMENT YEAR 2013 -14, THE LD. C IT(A) HAS COME TO A FACTUAL CONCLUSION THAT THE ASSESSING OFFICER HAS NOT RECORDED SATISFACTION BEFORE INVOKING RULE 8D OF THE RULES. CONSISTENT WITH THE VIEW TAKEN BY US FOR THE ASSESSMENT YEAR 14, WE UPHOLD THE FINDING OF THE LD. CIT(A) AND DISMISS THIS GROUND OF THE REVENUE AS THE LD. D/R WAS NOT ABLE TO DEMONSTRATE THAT THE ASSESSING OFFICER HAS SATISFACTION AS REQUIRED BY LAW, PRIOR TO INVOKING RULE 8D OF THE INCOME TAX GROUND NO. 2, IS REGARDING THE DELETION OF AN ADDITION MAD E ON ACCOUNT OF SALE PROPERTY AND CARRY FORWARD OF LOSS TO FUTURE YEARS. ASSESSEE HAS SOLD THE RIGHT S IN PROPERTY IN THE ASSESSMENT YEAR 2013 15. THE ASSESSEE DECLARED THE SAME AS INCOME FROM CAPITAL GAIN IN ITS RETURN NCOME FOR THESE ASSESSMENT YEARS. THE ASSESSING OFFICER HAS ACCEPTED THIS CLAIM OF THE ASSESSEE AND ASSESSED THE INCOME UNDER THE HEAD CAPITAL GAINS. DURING THE CURRENT ASSESSMENT YEAR 2015 - 16, THE ASSESSING OFFICER TREATED THE INCOME FROM SALE AS INCOME FROM BUSINESS. THE ASSESSEE DISPUTED THE SAME BEFORE CASE IS THAT THE INCOME IN QUESTION IS ASSESSABLE UNDER THE HEAD CAPITAL GAINS AND NOT UNDER THE HEAD INCOME FROM BUSINESS OF PROFESSION. HE RELIES ON OF THE HONBLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG VS. CIT ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 -14 & 2015-16 M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 29,09,680/ - ON SALE OF RIGHT PROPERTY AND CARRIED FORWARD THE LOSS TO FUTURE YEARS WHERE AS THE LAW IN ALLOWING THE DEDUCTION OF CSR EXPENDITURE PAID OF RS. 55,42,400 AS EXPENDITURE INCURRED BY THE ASSESSEE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION. ANY EXPENDITURE INCURRED BY AN ASSESSEE ON THE ACTIVITIES RELATING TO LITY REFERRED TO IN SECTION 135 OF THE COMPANIES ACT, 2013 (18 OF 2013) SHALL NOT BE DEEMED TO BE AN EXPENDITURE INCURRED BY THE ASSESSEE FOR CESS PAID OF RS. U/S. 37(1) OF THE ACT. WHICH HAS HELD THAT EDUCATION CESS DOES NOT FORM PART OF TAX AND HENCE OUTSIDE THE AMBIT OF SECTION 40( 1) (II) WHICH COVERS TAX ONLY. ODIFICATION ETC. OF OURSE OF APPELLATE GROUND NO. 1 IS AGAINST THE DELETION OF AN ADDITION MADE U/S 14A R.W.R. 8D. IN IT(A) HAS COME TO A FACTUAL BEFORE INVOKING RULE 8D OF THE RULES. CONSISTENT WITH THE VIEW TAKEN BY US FOR THE ASSESSMENT YEAR THIS GROUND OF THE REVENUE AS THE LD. D/R WAS NOT ABLE TO DEMONSTRATE THAT THE ASSESSING OFFICER HAS SATISFACTION AS REQUIRED BY LAW, PRIOR TO INVOKING RULE 8D OF THE INCOME TAX E ON ACCOUNT OF SALE PROPERTY IN THE ASSESSMENT YEAR 2013 -14 15. THE ASSESSEE DECLARED THE SAME AS INCOME FROM CAPITAL GAIN IN ITS RETURN NCOME FOR THESE ASSESSMENT YEARS. THE ASSESSING OFFICER HAS ACCEPTED THIS CLAIM OF THE ASSESSEE AND ASSESSED THE INCOME UNDER THE HEAD CAPITAL GAINS. DURING THE 16, THE ASSESSING OFFICER TREATED THE INCOME FROM SALE AS INCOME FROM BUSINESS. THE ASSESSEE DISPUTED THE SAME BEFORE CASE IS THAT THE INCOME IN QUESTION IS ASSESSABLE UNDER THE HEAD CAPITAL GAINS AND NOT UNDER THE HEAD INCOME FROM BUSINESS OF PROFESSION. HE RELIES ON RADHASOAMI SATSANG VS. CIT (1992) 193 ITR 321 (SC) , FOR THE PROPOSITION THAT CONSISTENCY SHOULD BE FOLLOWED BY THE ASSESSING OFFICER WHEN THE FACTS PERMEATING OVER THE YEARS ARE THE SAME. THE LD. CIT(A) AT PARA 11, 12 AND 13 OF HIS ORDER, PAGE 9, HELD AS FOLLOWS: 11. I HAVE GONE THROUGH THE ORDER OF THE ID. A.O THE LD. A.R.S OF THE ASSESSEE. IT IS A FACT THAT AFTER ADVERTI EARLIER YEAR, THE LD. A.O. HAS NOT BEEN CONSISTENT WITH THE APPROACH. REASONS FOR NOT FOLLOWING THE EARLIER WERE SAME/ SIMILAR. THE DEC FURTHER, DECISION IN UNION OF INDIA KANMUDIN RELIED UPON. 12. IN THIS CASE 37 FLATS WERE PURCHASED OF DIFFERENT CONFIGURATION. THIS WAS VALID BY AN AGREEMENT. THE APPROXIMATE TOTAL AREA WAS 50051 SQ. FT. ASSESSEE PURCHASED ENTIRE PURCHASE CONSIDERATION. IT WAS REFLECT ACCOUNTS AS WELL. IT SHOWN AS INVESTMENT. ASSESSEE D RS.16,10,57,228/ - AS CONSIDERATION. THE LAST DATE OF PAYMENT IN ALL 37 CASES/FLATS WAS 18.02.2015. THIS AFTER 3 YEARS. THIS POSITION WAS ACCEPTED IN EARLIER YEARS. 13. THUS FOLLOWING THE DECISION IN RADHA SOAMI SATSANG. I HAVE NO OPTION BUT TO GO BY THE DECISION IN RADHA SOAMI SATSANG ON THE PRINCIPLES OF CONSISTENCY. RELIAN CE IS ALSO PLACED ON THE DECISION OF CALCUTTA ITAT IN THE CASE OF DCIT VS. M/S. ABCI INFR ASTRUCTURE PVT. LTD. (ITA NO. 990/KOLKATA/2013). 16. WE FIND NO INFIRMITY IN THE SAME. HENCE WE DISMISS THESE GROUNDS OF THE REVENUE. 17. GROUND NO. 3 IS AGAINST THE ALLOWANCE OF DEDUCTION O 17.1. THE LD. CIT(A) HAS DEALT WITH THE ISSUE FRO CONCLUDED AS FOLLOWS:- 25. THE PRESENT EXPENDITURE OF RS.55,42,400/ CONTRIBUTION FOR CSR ACTIVITIES UNDERTAKEN BY VARIOUS OFFICES OF RAMAKRISHNA MISSION, BHARAT SEVASHRAM SANGHA ETC. OF THE ACT AND ON WHICH THE LEGISLATURE HAS NOT PUT ANY RESTRICTION AS REGARDS ALLOWANCE OF CSR SPENT. HENCE, THE LEGAL POSITION THAT EMERGES AND IS APPLICABLE FOR THE YEAR UNDER CONSIDERATION IS TH ACTIVITIES WHICH ALSO FALL WITHIN THE EXPENDITURE/CONTRIBUTIONS SPECIFIED IN SECTION 80G OF THE ACT (OTHER THAN SWACCH BHARAT KOSH OR CLEAN GANGA FUND) IS ALLOWABLE AS DEDUCTION U/S 80G OF THE ACT. 17.2. IN THE GROUNDS OF APPEAL, THE REVENUE DOES NOT DISPUTE THE FINDING OF THE LD. CIT(A) THAT THE EXPENDITURE IS IN QUESTION IS ALLOW HAS NOT HELD THAT THE EXPENDITURE IS ALLOWABLE U/S 36 /37 OF THE ACT. IT IS NOT THE CASE THE LD. CIT(A) THAT EXPLANATION 2 TO SECTION 5 ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 M/S. THE PEERLESS GENERAL FINANCE & , FOR THE PROPOSITION THAT CONSISTENCY SHOULD BE FOLLOWED BY THE ASSESSING OFFICER WHEN THE FACTS PERMEATING OVER THE YEARS ARE THE SAME. THE LD. 11, 12 AND 13 OF HIS ORDER, PAGE 9, HELD AS FOLLOWS: - 11. I HAVE GONE THROUGH THE ORDER OF THE ID. A.O . AND THE SUBMISSIONS MADE BY A.R.S OF THE ASSESSEE. IT IS A FACT THAT AFTER ADVERTI NG ON THE ISSUE IN A.O. HAS NOT BEEN CONSISTENT WITH THE APPROACH. REASONS FOR EARLIER ORDER HAS ALSO NOT BEEN MADE PARTICULARLY WHEN FACTS WERE SAME/ SIMILAR. THE DEC ISION IN RADHA SWAMI SATSANG STANDS VITIATED. FURTHER, DECISION IN UNION OF INDIA KANMUDIN I NARAYAN DALAL 249 ITR IS ALSO 12. IN THIS CASE 37 FLATS WERE PURCHASED OF DIFFERENT CONFIGURATION. THIS WAS VALID BY AN AGREEMENT. THE APPROXIMATE TOTAL AREA WAS 50051 SQ. FT. ASSESSEE ENTIRE PURCHASE CONSIDERATION. IT WAS REFLECT ED IN THE AUDITED ACCOUNTS AS WELL. IT SHOWN AS INVESTMENT. ASSESSEE D ECLARED TOTAL RECEIPT OF AS CONSIDERATION. THE LAST DATE OF PAYMENT IN ALL 37 CASES/FLATS WAS 18.02.2015. THIS AFTER 3 YEARS. THIS POSITION WAS ACCEPTED IN 13. THUS FOLLOWING THE DECISION IN RADHA SOAMI SATSANG. I HAVE NO OPTION BUT BY THE DECISION IN RADHA SOAMI SATSANG ON THE PRINCIPLES OF CONSISTENCY. CE IS ALSO PLACED ON THE DECISION OF CALCUTTA ITAT IN THE CASE OF DCIT VS. ASTRUCTURE PVT. LTD. (ITA NO. 990/KOLKATA/2013). WE FIND NO INFIRMITY IN THE SAME. HENCE WE DISMISS THESE GROUNDS OF THE REVENUE. GROUND NO. 3 IS AGAINST THE ALLOWANCE OF DEDUCTION O F CSR EXPENSES. THE LD. CIT(A) HAS DEALT WITH THE ISSUE FRO M PARA 15 ONWARDS. AT PARA 25, HE 25. THE PRESENT EXPENDITURE OF RS.55,42,400/ - HAVE BEEN MADE APPARENTLY BY WAY OF CONTRIBUTION FOR CSR ACTIVITIES UNDERTAKEN BY VARIOUS OFFICES OF RAMAKRISHNA MISSION, BHARAT SEVASHRAM SANGHA ETC. ALL OF WHICH ARE ELIGIBLE FOR DEDUCTION U I S. 80G(5)(VI) OF THE ACT AND ON WHICH THE LEGISLATURE HAS NOT PUT ANY RESTRICTION AS REGARDS ALLOWANCE OF CSR SPENT. HENCE, THE LEGAL POSITION THAT EMERGES AND IS APPLICABLE FOR THE YEAR UNDER CONSIDERATION IS TH AT ANY EXPENDITURE INCURRED TOWARDS ELIGIBLE CSR ACTIVITIES WHICH ALSO FALL WITHIN THE EXPENDITURE/CONTRIBUTIONS SPECIFIED IN SECTION 80G OF THE ACT (OTHER THAN SWACCH BHARAT KOSH OR CLEAN GANGA FUND) IS ALLOWABLE AS DEDUCTION U/S 80G OF THE ACT. THE GROUNDS OF APPEAL, THE REVENUE DOES NOT DISPUTE THE FINDING OF THE LD. CIT(A) THAT THE EXPENDITURE IS IN QUESTION IS ALLOW ABLE U/S 80G OF THE ACT. THE LD. CIT(A) HAS NOT HELD THAT THE EXPENDITURE IS ALLOWABLE U/S 36 /37 OF THE ACT. IT IS NOT THE CASE THE LD. CIT(A) THAT EXPLANATION 2 TO SECTION 37 OF THE ACT, DOES NOT COME INTO PLAY. HE ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 -14 & 2015-16 M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD , FOR THE PROPOSITION THAT CONSISTENCY SHOULD BE FOLLOWED BY THE ASSESSING OFFICER WHEN THE FACTS PERMEATING OVER THE YEARS ARE THE SAME. THE LD. . AND THE SUBMISSIONS MADE BY NG ON THE ISSUE IN A.O. HAS NOT BEEN CONSISTENT WITH THE APPROACH. REASONS FOR ORDER HAS ALSO NOT BEEN MADE PARTICULARLY WHEN FACTS IN RADHA SWAMI SATSANG STANDS VITIATED. I NARAYAN DALAL 249 ITR IS ALSO 12. IN THIS CASE 37 FLATS WERE PURCHASED OF DIFFERENT CONFIGURATION. THIS WAS VALID BY AN AGREEMENT. THE APPROXIMATE TOTAL AREA WAS 50051 SQ. FT. ASSESSEE ED IN THE AUDITED ECLARED TOTAL RECEIPT OF AS CONSIDERATION. THE LAST DATE OF PAYMENT IN ALL 37 CASES/FLATS WAS 18.02.2015. THIS AFTER 3 YEARS. THIS POSITION WAS ACCEPTED IN 13. THUS FOLLOWING THE DECISION IN RADHA SOAMI SATSANG. I HAVE NO OPTION BUT BY THE DECISION IN RADHA SOAMI SATSANG ON THE PRINCIPLES OF CONSISTENCY. CE IS ALSO PLACED ON THE DECISION OF CALCUTTA ITAT IN THE CASE OF DCIT VS. WE FIND NO INFIRMITY IN THE SAME. HENCE WE DISMISS THESE GROUNDS OF THE REVENUE. CSR EXPENSES. M PARA 15 ONWARDS. AT PARA 25, HE HAVE BEEN MADE APPARENTLY BY WAY OF CONTRIBUTION FOR CSR ACTIVITIES UNDERTAKEN BY VARIOUS OFFICES OF RAMAKRISHNA MISSION, ALL OF WHICH ARE ELIGIBLE FOR DEDUCTION U I S. 80G(5)(VI) OF THE ACT AND ON WHICH THE LEGISLATURE HAS NOT PUT ANY RESTRICTION AS REGARDS ALLOWANCE OF CSR SPENT. HENCE, THE LEGAL POSITION THAT EMERGES AND IS APPLICABLE FOR THE AT ANY EXPENDITURE INCURRED TOWARDS ELIGIBLE CSR ACTIVITIES WHICH ALSO FALL WITHIN THE EXPENDITURE/CONTRIBUTIONS SPECIFIED IN SECTION 80G OF THE ACT (OTHER THAN SWACCH BHARAT KOSH OR CLEAN GANGA FUND) IS ALLOWABLE AS THE GROUNDS OF APPEAL, THE REVENUE DOES NOT DISPUTE THE FINDING OF THE LD. U/S 80G OF THE ACT. THE LD. CIT(A) HAS NOT HELD THAT THE EXPENDITURE IS ALLOWABLE U/S 36 /37 OF THE ACT. IT IS NOT THE CASE OF OF THE ACT, DOES NOT COME INTO PLAY. HE WAS OF THE VIEW THAT DEDUCTION IN QUESTION IS CHAPTER IV. AS THIS FINDING HAS NOT BEEN 18. GROUND NO. 4 IS AGAINST THE ALLOWANCE OF DEDUCTION OF EDUCATION CESS U/S 37(1) OF THE ACT. 19. THE LD. CIT(A) AT PARA 35 & 36 OF HIS ORDER HELD AS FOLLOWS: 35. I HAVE GONE THROUGH THE KOLKATA TRIBUNAL IN THE CASE OF M/S. ITC LIMITED VS. ACIT, RANGE- 8, KOLKATA IN ITA NO. 685/KOL/2014. IN PARA 12, THE FOLLOWING HAS BEEN STATED BY THE TRIBUNAL '12. THE ASSESSEE'S ADDITIONAL LAST/ SUBSTANTIVE GROUND AVERS THAT IT IS ENTITLED FOR THE EDUCATIONS SECONDARY HIGHER EDUCATION CESS AS OVERHEAD D RS.423618317.0 U/S 37 OF THE ACT. WE NOT THAT HON'BLE RAJASTHAN HIGH COURT'S DECISION IN DB INCOME TAX APPEAL NO. 52/ KOLKATA/ 2018 M DECIDED ON 31.07.2018 TAKES INTO ACCOUNT CBDT CIRCULAR DATED 18. SUCH CESS(ES) TO BE ALLOWABLE AS DEDUCTION. THEIR LORDSHIPS HOLD THAT SECTION 40A(II) APPLIES ONLY ON TAXES SUCH THAN EARN CESS(ES). WE THEREFORE REJECT THE REVENUE CONTENTIONS SUPPORTING THE IMPUGNED DISALLOWANCE. THE ASSESSEE'S INST GROUND IS ACCEPTED. THE ASSESSING OFFICER IS DIRECTION TO VERIFY ALL THE RELEVANT FACTS AND ALLOW THE IMPUGNED CESS (ES) AS DEDUCTION U/ S 37 OF THE ACT. THE ASSESSEE'S APPEAL I. T.A. NO. 685/ KOL/ 20 14 IS PARTLY ACCEPTED IN ABOVE TERMS. ' 36. THE DECISION OF THE TRIBUNAL IS THAT OF A HIGHER JUDICIAL FORUM. EVEN THOUGH THERE MAY BE DIVERGENT VIEW, THE DECISION OF THE HIGHER JUDICIAL FORUM OUGHT TO BE ACCEPTED. ASSESSEE SUCCEEDS IN THIS GROUND OF APPEAL. 20. WE FIND NOT INFIRMITY IN THIS FI GROUND NO. 4 OF THE REVENUE IS DISMISSED. 21. GROUND NO. 5 IS GENERAL IN NATURE. 22. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. KOLKATA, THE SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 05.12.2019 {SC SPS} 6 ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 M/S. THE PEERLESS GENERAL FINANCE & WAS OF THE VIEW THAT DEDUCTION IN QUESTION IS ALLOW ABLE UNDER CHAPTER VIA AND NOT UNDER CHAPTER IV. AS THIS FINDING HAS NOT BEEN CHALLENGED , IN THIS GROUND, WE DISMI GROUND NO. 4 IS AGAINST THE ALLOWANCE OF DEDUCTION OF EDUCATION CESS U/S 37(1) OF THE LD. CIT(A) AT PARA 35 & 36 OF HIS ORDER HELD AS FOLLOWS: - I HAVE GONE THROUGH THE KOLKATA TRIBUNAL IN THE CASE OF M/S. ITC LIMITED VS. 8, KOLKATA IN ITA NO. 685/KOL/2014. IN PARA 12, THE FOLLOWING HAS BEEN STATED BY '12. THE ASSESSEE'S ADDITIONAL LAST/ SUBSTANTIVE GROUND AVERS THAT IT IS ENTITLED FOR THE EDUCATIONS SECONDARY HIGHER EDUCATION CESS AS OVERHEAD D EDUCTION AMOUNTING TO RS.423618317.0 U/S 37 OF THE ACT. WE NOT THAT HON'BLE RAJASTHAN HIGH COURT'S DECISION IN DB INCOME TAX APPEAL NO. 52/ KOLKATA/ 2018 M / S CHAMBAL FERTILIZERS LTD. VS. DCIT DECIDED ON 31.07.2018 TAKES INTO ACCOUNT CBDT CIRCULAR DATED 18. 05.1967 FOR HOLDING SUCH CESS(ES) TO BE ALLOWABLE AS DEDUCTION. THEIR LORDSHIPS HOLD THAT SECTION 40A(II) APPLIES ONLY ON TAXES SUCH THAN EARN CESS(ES). WE THEREFORE REJECT THE REVENUE CONTENTIONS SUPPORTING THE IMPUGNED DISALLOWANCE. THE ASSESSEE'S INST GROUND IS ACCEPTED. THE ASSESSING OFFICER IS DIRECTION TO VERIFY ALL THE RELEVANT FACTS AND ALLOW THE IMPUGNED CESS (ES) AS DEDUCTION U/ S 37 OF THE ACT. THE ASSESSEE'S APPEAL T.A. NO. 685/ KOL/ 20 14 IS PARTLY ACCEPTED IN ABOVE TERMS. ' 36. THE DECISION OF THE TRIBUNAL IS THAT OF A HIGHER JUDICIAL FORUM. EVEN THOUGH THERE MAY BE DIVERGENT VIEW, THE DECISION OF THE HIGHER JUDICIAL FORUM OUGHT TO BE ACCEPTED. ASSESSEE SUCCEEDS WE FIND NOT INFIRMITY IN THIS FI NDING OF THE LD. CIT(A) AND UPHOLD THE SAME. HENCE GROUND NO. 4 OF THE REVENUE IS DISMISSED. GROUND NO. 5 IS GENERAL IN NATURE. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. KOLKATA, THE 5 TH DAY OF DECEMBER, 2019 . [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 -14 & 2015-16 M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD ABLE UNDER CHAPTER VIA AND NOT UNDER , IN THIS GROUND, WE DISMI SS THE SAME. GROUND NO. 4 IS AGAINST THE ALLOWANCE OF DEDUCTION OF EDUCATION CESS U/S 37(1) OF I HAVE GONE THROUGH THE KOLKATA TRIBUNAL IN THE CASE OF M/S. ITC LIMITED VS. 8, KOLKATA IN ITA NO. 685/KOL/2014. IN PARA 12, THE FOLLOWING HAS BEEN STATED BY '12. THE ASSESSEE'S ADDITIONAL LAST/ SUBSTANTIVE GROUND AVERS THAT IT IS ENTITLED FOR THE EDUCTION AMOUNTING TO RS.423618317.0 U/S 37 OF THE ACT. WE NOT THAT HON'BLE RAJASTHAN HIGH COURT'S DECISION S CHAMBAL FERTILIZERS LTD. VS. DCIT 05.1967 FOR HOLDING SUCH CESS(ES) TO BE ALLOWABLE AS DEDUCTION. THEIR LORDSHIPS HOLD THAT SECTION 40A(II) APPLIES ONLY ON TAXES SUCH THAN EARN CESS(ES). WE THEREFORE REJECT THE REVENUE S CONTENTIONS SUPPORTING THE IMPUGNED DISALLOWANCE. THE ASSESSEE'S INST ANT SUBSTANTIVE GROUND IS ACCEPTED. THE ASSESSING OFFICER IS DIRECTION TO VERIFY ALL THE RELEVANT FACTS AND ALLOW THE IMPUGNED CESS (ES) AS DEDUCTION U/ S 37 OF THE ACT. THE ASSESSEE'S APPEAL 36. THE DECISION OF THE TRIBUNAL IS THAT OF A HIGHER JUDICIAL FORUM. EVEN THOUGH THERE MAY BE DIVERGENT VIEW, THE DECISION OF THE HIGHER JUDICIAL FORUM OUGHT TO BE ACCEPTED. ASSESSEE SUCCEEDS NDING OF THE LD. CIT(A) AND UPHOLD THE SAME. HENCE . SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD 3, ESPLANADE EAST KOLKATA 700 069 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 7 ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 M/S. THE PEERLESS GENERAL FINANCE & FINANCE & INVESTMENT & CO. LTD DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE -12(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 1469 & 1470/KOL/2019 ASSESSMENT YEAR: 2013 -14 & 2015-16 M/S. THE PEERLESS GENERAL FINANCE & INVESTMENT & CO. LTD TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES