Esgee Apex Trust, Kolkata V. DCIT, Cir. 1(1), Exemptions, , Kolkata

ITA 251/KOL/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8580 (ITAT-KOLKATA)
• Duration Of Justice: 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2021-2022
• Appeal Filed On: 07-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Application of stay
• Section: 154; 2; 115JB; 143(1); 250

Judgement Text

आयकर अपीलȣय अͬधकरण, कोलकाता पीठ ‘सी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH KOLKATA Įी संजय गग[, ÛयाǓयक सदèय एवं Įी मनीष बोरड, लेखा सदèय के सम¢ Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A. No.251/Kol/2024 Assessment Year : 2021-22 Esgee Apex Trust.....................................................................Appellant Duncan House, 4 th Floor, 31, Netaji Subhas Road, Kolkata-1. [PAN:AAATE8362R] vs. DCIT, Circle-1(1), Exemptions, Kolkata.......................................... Respondent S.A No.01/Kol/2024 (A/o I.T.A. No.251/Kol/2024) Assessment Year : 2021-22 Esgee Apex Trust.....................................................................Appellant Duncan House, 4 th Floor, 31, Netaji Subhas Road, Kolkata-1. [PAN:AAATE8362R] vs. DCIT, Circle-1(1), Exemptions, Kolkata.......................................... Respondent Appearances by: Shri Akkal Dudhewala, AR, appeared on behalf of the appellant. Shri Rakesh Kumar Das, CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : February 20, 2024 Date of pronouncing the order : February 22, 2024 आदेश / ORDER संजय गग[, ÛयाǓयक सदèय ɮवारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 10.01.2024 of the National Faceless Appeal Centre [hereinafter referred to as the ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). I.T.A. No.251/Kol/2024 & S.A No.01/Kol/2024 Assessment Year : 2021-22 Esgee Apex Trust 2 2. The short issue involved in this appeal is as to the applicability of the rates of Income Tax/surcharge as amended/brought by Finance Act 2021 w.e.f. 01.04.2021, whether the same will be applicable for taxing the income for Assessment Year (in short ‘A.Y’) 2021-22 or A.Y 2022-23 onwards. 3. In the Financial Year 2020-21 relevant to A.Y 2021-22, the assessee-trust earned dividend income of Rs.47,29,14,000/-, whereupon, the assessee self-computed the tax payable along with surcharge @15% which was accepted by the CPC while processing the return of the assessee u/s 143(1) of the Act. Thereafter, by way of a rectification order passed u/s 154 of the Act, the surcharge on the dividend income has been calculated @37%. 4. It is pertinent to mention here that earlier the surcharge on dividend was chargeable @37%. However, vide Amendment brought by Finance Act 2021, the same has been capped at 15%. The ld. Counsel, in this respect, has relied upon the following provisions of the Finance Act 2021: CHAPTER II RATES OF INCOME-TAX 2. (1) Subject to the provisions of sub-sections (2) and (3), for the assessment year commencing on the 1st day of April, 2021, income-tax shall be charged at the rates specified in Part I of the First Schedule and such tax shall be increased by a surcharge, for the purposes of the Union, calculated in each case in the manner provided therein...... Provided further that in respect of any income chargeable to tax under section 115A, 115AB, 115AC, 115ACA, 115AD, 115B, 115BA, 115BB, 115BBA, 115BBC, 115BBD, 115BBF, 115BBG, 115E, 115JB or 115JC of the Income-tax Act, the amount of income-tax computed under this sub- section shall be increased by a surcharge, for the purposes of the Union, calculated,—....... I.T.A. No.251/Kol/2024 & S.A No.01/Kol/2024 Assessment Year : 2021-22 Esgee Apex Trust 3 (aa) in the case of individual or every association of person or body of individuals, whether incorporated or not, or every artificial juridical person referred to in sub-clause (vii) of clause (31) of section 2 of the Income-tax Act, having income under section 115AD of the Income-tax Act,–– (i) having a total income exceeding fifty lakh rupees but not exceeding one crore rupees, at the rate of ten per cent. of such income-tax; (ii) having a total income exceeding one crore rupees, but not exceeding two crore rupees, at the rate of fifteen per cent. of such income-tax; (iii) having a total income [excluding the income by way of dividend or income of the nature referred to in clause (b) of sub-section (1) of section 115AD of the Income-tax Act] exceeding two crore rupees but not exceeding five crore rupees, at the rate of twenty-five per cent. of such income-tax; (iv) having a total income [excluding the income by way of dividend or income of the nature referred to in clause (b) of sub-section (1) of section 115AD of the Income-tax Act] exceeding five crore rupees, at the rate of thirty-seven per cent. of such income-tax; and (v) having a total income [including the income by way of dividend or income of the nature referred to in clause (b) of sub-section (1) of section 115AD of the Income-tax Act] exceeding two crore rupees, but is not covered in sub- clauses (iii) and (iv), at the rate of fifteen per cent. of such income-tax: Provided that in case where the total income includes any income by way of dividend or income chargeable under clause (b) of sub-section (1) of section 115AD of the Income-tax Act, the rate of surcharge on the income-tax calculated on that part of income shall not exceed fifteen per cent.;.... (Emphasis supplied) 5. A perusal of the above relevant provisions of Finance Act 2021 would show that it has been specifically provided regarding the rate of Income Tax that the rates so prescribed by the Finance Act 2021 are in respect of income liable to tax for A.Y 2021-22. It is also an admitted case that vide Finance Act 2021, the surcharge on dividend applicable to the assessee-trust is liable to be charged @15%. Therefore, there is no merit in the contention of the revenue that the aforesaid rate of surcharge @15% would be applicable for A.Y 2022-23 onwards, I.T.A. No.251/Kol/2024 & S.A No.01/Kol/2024 Assessment Year : 2021-22 Esgee Apex Trust 4 whereas, it has been specifically provided that the said rates are applicable for A.Y 2021-22 starting from 1 st April 2021. The appeal of the assessee is therefore allowed and the impugned addition made on this issue is ordered to be deleted. 6. Along with the main appeal, the assessee has also filed an application for stay for recovery of tax demand. Since the main appeal has been decided by us in favour of the assessee, therefore, the stay application has become infructuous and the same is accordingly dismissed. 7. In the result, the appeal of the assessee stands allowed and the stay application is dismissed having become infructuous. Kolkata, the 22 nd February, 2024. Sd/- Sd/- [डॉÈटर मनीष बोरड /Dr. Manish Borad] [संजय गग[ /Sanjay Garg] लेखा सदèय /Accountant Member ÛयाǓयक सदèय /Judicial Member Dated: 22.02.2024. RS Copy of the order forwarded to: 1. Esgee Apex Trust 2. DCIT, Circle-1(1), Exemptions, Kolkata 3.CIT (A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches