Appeal details
Counselvise Citation
[2021] 107 COUNSELVISE.COM (IT) 4220 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 1 month(s) 18 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
06-10-2021
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB-A
Next Hearing Date
02-09-2021
Assessment Year
2016-2017
Appeal Filed On
18-08-2020
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 324/HYD/2020 2016-17 M/S.BROADRIDGE FINANCIAL SOLUTIONS (INDIA) PRIVATE LIMITED, HYDERABAD [PAN: AADCB0321R] ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1(2), HYDERABAD 448/HYD/2020 2016-17 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2), HYDERABAD M/S.BROADRIDGE FINANCIAL SOLUTIONS (INDIA) PRIVATE LIMITED, HYDERABAD [PAN: AADCB0321R] FOR ASSESSEE : SHRI H.SRINIVASULU, AR FOR REVENUE : SMT. M.NARMADA, DR DATE OF HEARING : 02-09-2021 DATE OF PRONOUNCEMENT : 06-10-2021 O R D E R PER S.S.GODARA, J.M. : THESE ASSESSEES AND REVENUES CROSS-APPEALS FOR AY.2016-17 ARISE AGAINST THE CIT(A)-1, HYDERABADS OR DER DATED 18-02-2020, IN CASE NOS.10407 / CIT(A)-I / HYD /2018- 19, INVOLVING PROCEEDINGS U/S.143(3) OF THE INCOME T AX ACT, 1961 [IN SHORT, THE ACT]; RESPECTIVELY. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THIS ASSESSEES APPEAL ITA NO.324/HYD/2020 SUFFERS FROM 68 DAYS DELAY STATED TO BE ITA NOS. 324 & 448/HYD/2020 :- 2 -: ATTRIBUTABLE TO THE REASON(S) BEYOND ITS CONTROL AS PER CONDONATION PETITION/AFFIDAVIT. NO REBUTTAL HAS COME FROM THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THER EFORE. 2.1. WE ALSO NOTICE THAT THIS REVENUES APPEAL SUFFERS FROM DELAY OF 105 DAYS AS ATTRIBUTABLE TO THE REASONS MENTIO NED IN THE PETITION/AFFIDAVIT AND ON ACCOUNT OF NO OBJECTION FR OM ASSESSEES SIDE. THIS DELAY STANDS CONDONED THEREFORE . 3. WE ADVERT TO ASSESSEES APPEAL ITA NO.324/HYD/2020 . ITS FIRST AND FOREMOST SUBSTANTIVE GRIEVANCE SEEKS TO RE VERSE BOTH THE LOWER AUTHORITIES ACTION DECLINING ITS EDUCATI ON CESS CLAIM BY QUOTING 40(A)(II) OF THE ACT FOR THE REASON THAT THE CLINCHING STATUTORY EXPRESSION TAX EMPLOYED THEREIN ALSO INCLUDES CESS. WE NOTE IN THIS FACTUAL BACKDR OP THAT THE INSTANT ISSUE OF ASSESSEES EDUCATION CESS AS ALLO WABLE DEDUCTION IS NO MORE RES INTEGRA IN LIGHT OF CASE LAW SESA GOA LTD, VS. JCIT (2020) [117 TAXMANN.COM 96] (BOM) AND CHAMBAL FERTILIZERS AND CHEMICALS LTD, VS. CIT, ITA NO.52/2018 (RAJ) IN LIGHT OF CBDTS CIRCULAR DT.18-05 -1967 THAT EDUCATION CESS IS NOT INCLUDED IN TAX U/S.40(A)(I I) OF THE ACT , THEREBY DECIDING THE ISSUE IN ASSESSEES FAVOUR AND AGAINST THE DEPARTMENT. WE THUS ACCEPT THE ASSESSEES F IRST AND FOREMOST GRIEVANCE TO THIS EFFECT. THE ASSESSING OF FICER SHALL FRAME CONSEQUENTIAL COMPUTATION TO THIS EFFECT AS PER LAW. 4. NEXT COMES THE ASSESSEES PETITION DT.18-06-2020 SEE KING TO RAISE ITS ADDITIONAL CLAIM FOR CREDIT OF FOREIGN TA X TO THE TUNE OF RS.59,69,740/- PAID IN AUSTRALIA. ITA NOS. 324 & 448/HYD/2020 :- 3 -: 4.1. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVA L PLEADINGS. HON'BLE APEX COURTS LANDMARK DECISION I N NATIONAL THERMAL POWER CO. LTD., VS., CIT [229 ITR 383] (SC) AS CONSIDERED IN TRIBUNALS SPECIAL BENCHS DECISION AL L CARGO GLOBAL LOGISTICS LTD., VS. DCIT (2012) [137 ITD 217] (SB) (MUMBAI), HOLDS THAT THE TRIBUNAL CAN VERY WELL ENTERTAIN A NEW GROUND GOING TO ROOT OF THE MATTER SO AS TO DET ERMINE CORRECT TAX LIABILITY OF A TAXPAYER PROVIDED ALL RELEVANT F ACTS ARE ALREADY ON RECORD . WE GO BY THE VERY ANALOGY AND FIND THAT THE ASSESSEES FOREGOING PETITION SEEKING TO RAISE ITS ADD ITIONAL SUBSTANTIVE GROUND(S) DESERVES ACCEPTANCE. ORDERED ACCORDINGLY. 4.2. WE FIND DURING THE COURSE OF HEARING THAT THE ASS ESSEES CASE ALL ALONG IS THAT THE RELEVANT DETAILS OF THE IMPUGN ED INCOME TAX AMOUNT HAD BEEN RECEIVED POST FACTO THE CIT( A)S ORDER ONLY. BE THAT AS IT MAY, WE ARE OF THE VIEW THAT TH E ASSESSING OFFICER NEEDS TO ADJUDICATE THE INSTANT ISSUE BOTH IN LIGHT OF SECTION 90 AS WELL AS SECTION 91 OF THE ACT AS WELL AS THE CORRESPONDING DETAILS FORMING PART OF RECORDS. WE THEREFORE ACCEPT THE ASSESSEES INSTANT LATTER SUBSTANTIVE GRIEVANCE FOR STATISTICAL PURPOSES. ITS APPEAL ITA NO.324/HYD/2020 IS TREATED AS ALLOWED FOR STATISTICAL PU RPOSES IN ABOVE TERMS. 5. WE NOW PROCEED TO DEAL WITH THE REVENUES CROSS APP EAL ITA NO.448/HYD/2020 RAISING THE SOLE SUBSTANTIVE ISSUE OF EMPLOYEES STOCK OPTION SCHEME (ESOP) DEDUCTION CLAIM O F RS.2,21,55,486/-. THE ASSESSING OFFICER HELD IN HIS ASSESSMENT ORDER DT.19-12-2018 THAT THE IMPUGNED ITA NOS. 324 & 448/HYD/2020 :- 4 -: EXPENDITURE IS NOT ALLOWABLE UNDER REVENUE HEAD. W E NOTE IN THIS FACTUAL BACKDROP THAT THE INSTANT ISSUE AS TO WHETHER SUCH AN ESOP DEDUCTION CLAIM FALLS UNDER REVENUE HE AD OR NOT ALREADY STANDS ADJUDICATED IN THIS TRIBUNALS SPECIAL BENCH DECISION IN M/S.BIOCON LTD. VS. DCIT (2013) 35 TAXMANN.COM335 (BANG) AND UPHOLD IN REVENUES APP EAL ITA NO.653/2013 PREFERRED BEFORE THE HON'BLE KARNATAK A HIGH COURT ON 11-11-2020. WE THUS REJECT ITS INSTANT SOLE SUBSTANTIVE GROUND AS WELL AS THE MAIN APPEAL ITA NO.448/HYD/2020. NO OTHER GROUND HAS BEEN PRESSED BEFORE US. 6. TO SUM-UP, ASSESSEE APPEAL ITA NO.324/HYD/2020 I S TREATED AS PARTLY ALLOWED AND THE REVENUES CROSS APPEA L ITA NO.448/HYD/2020 IS DISMISSED IN ABOVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER, 2021 SD/- SD /- ( A. MOHAN ALANKAMONY ) ( S.S. GODAR A ) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 06-10-2021 TNMM ITA NOS. 324 & 448/HYD/2020 :- 5 -: COPY TO : 1.M/S.BROADRIDGE FINANCIAL SOLUTIONS (INDIA) PRIVAT E LIMITED, SURVEY NO.64, (ADJACENT TO CYBER TOWERS), HI-TECH CITY, MADHAPUR, SERILINGAMPALLY MANDAL, HYDERABAD. 2.THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2 ), HYDERABAD. 3.THE ASST.COMMISSIONER OF INCOME TAX, CIRCLE-1(2), HYDERABAD. 4.THE CIT(APPEALS)-I, HYDERABAD. 5.THE PR.CIT-I, HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.
