ACIT LTU-2, , CHENNAI V. Saint Gobain Glass India Limited, Kanchipuram

ITA 2549/CHNY/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5174 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASISH TRIPATHY
• Assessee Lawyers: R VIJAYARAGHAVAN
• Section: 115JB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO. 2549/CHNY/2017 ( )( / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, LARGE TAXPAYER UNIT 2, CHENNAI - 600 034. V. M/S SAINT GOBAIN GLASS INDIA LIMITED, PLOT NO.A-1, SIPCOT INDUSTRIAL PARK, SRIPERUMBUDUR, KANCHIPURAM DISTRICT. PIN: 602 105. PAN : AABCS 4338 M (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI ASISH TRIPATHY, JCIT -.+, / 0 / RESPONDENT BY : SH. R. VIJAYARAGHAVAN, ADVOCATE 1 / 2% / DATE OF HEARING : 24.05.2018 3') / 2% / DATE OF PRONOUNCEMENT : 31.05.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -17, CHENN AI, DATED 21.08.2017 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2 I.T.A. NO.2549/CHNY/17 2. SHRI ASISH TRIPATHY, THE LD. DEPARTMENTAL REPRES ENTATIVE, SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERAT ION IS WHETHER THE SURCHARGE AND EDUCATION CESS IS PART OF THE INCOME- TAX. PLACING RELIANCE ON THE DECISION OF MUMBAI BENCH OF THIS TR IBUNAL IN M/S SAVITA OIL TECHNOLOGIES LTD. V. ACIT IN I.T.A. NO.3 066/MUM/2015 DATED 07.02.2017, THE LD. D.R. SUBMITTED THAT THE S URCHARGE AND EDUCATION CESS HAVE TO BE WORKED OUT ON THE TAX LIA BILITY. ACCORDING TO THE LD. D.R., FROM THE GROSS AMOUNT SO ARRIVED, THE AMOUNT OF CREDIT AVAILABLE UNDER SECTION 115JB OF THE INCOME- TAX ACT, 1961 (IN SHORT 'THE ACT') ON ACCOUNT OF INCOME-TAX, SURCHAR GE AND EDUCATION CESS HAVE TO BE DEDUCTED AND THE NET TAX PAYABLE AF TER SETTING OFF CREDIT AVAILABLE UNDER SECTION 115JB OF THE ACT HAS TO BE WORKED OUT. HOWEVER, ACCORDING TO THE LD. D.R., THE CIT(A PPEALS) BY PLACING RELIANCE ON ANOTHER DECISION OF MUMBAI BENC H OF THIS TRIBUNAL IN WYETH LIMITED V. ACIT IN I.T.A. NO.6682 /MUM/2011 DATED 09.01.2015, FOUND THAT THIS DECISION OF THE M UMBAI BENCH OF THIS TRIBUNAL WAS FOLLOWED BY THE CHENNAI BENCH IN SAINT GOBAIN GYPROC INDIA LTD., THEREFORE, SURCHARGE AND EDUCATI ON CESS HAVE TO BE ADJUSTED AGAINST THE TAX PAYABLE. 3 I.T.A. NO.2549/CHNY/17 3. ON THE CONTRARY, SH. R. VIJAYARAGHAVAN, THE LD.C OUNSEL FOR THE ASSESSEE, SUBMITTED THAT SURCHARGE AND EDUCATIO N CESS ARE PART OF INCOME-TAX IN VIEW OF ARTICLE 271 OF THE CONSTIT UTION OF INDIA. PLACING RELIANCE ON THE JUDGMENT OF APEX COURT IN C IT V. K. SRINIVASAN (1972) 83 ITR 346, THE LD.COUNSEL SUBMIT TED THAT INCOME-TAX INCLUDES SURCHARGE AND EDUCATION CESS. THEREFORE, WHEN THE INCOME-TAX WAS ADJUSTED, THE SURCHARGE AND EDUCATION CESS ALSO NEED TO BE ADJUSTED. HENCE, ACCORDING TO THE LD. COUNSEL, THE CIT(APPEALS) BY RIGHTLY FOLLOWING THE ORDER OF THIS TRIBUNAL IN SAINT GOBAIN GYPROC INDIA LTD. (SUPRA), DIRECTED THE ASSESSING OFFICER TO RECOMPUTE AND ALLOW THE MAT CR EDIT AGAINST THE TAX LIABILITY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT IF SURCHARGE AND EDUCATION CESS FORM P ART OF INCOME- TAX, THEN IT HAS TO BE ADJUSTED AGAINST THE TAX LIA BILITY UNDER THE MAT SCHEME. ARTICLE 271 OF THE CONSTITUTION OF INDIA I N CATEGORICAL TERM SAYS THAT SURCHARGE AND EDUCATION CESS INCLUDE INCO ME-TAX. THIS WAS ALSO CLARIFIED BY THE APEX COURT IN THE CASE OF K. SRINIVASAN (SUPRA). THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE 4 I.T.A. NO.2549/CHNY/17 WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDING LY THE SAME IS CONFIRMED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED ON 31 ST MAY, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 31 ST MAY, 2018. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-17, CHENNAI 4. CIT, LTU, CHENNAI. 5. 7: -2 /DR 6. ;( < /GF.