DY CIT CIRCLE-7(1)(1), MUMBAI V. GLOBAL TRADEX LTD., MUMBAI

MA 52/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3662 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 27-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VRANDA.U.MATKARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “G” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER MA No.52/Mum/2022 (Arising out of CO No.51/Mum/2021) In ITA No.6771/Mum/2019 (Assessment Year 2010-11) Dy. CIT Circle-7(1)(1) Mumbai Mumabri-400 025 Vs. M/s Global Tradex Ltd. Office No.527-527 Nav Bhavan 49 PD Mello Road Carnac Brand Mumbai-400 009 PAN/GIR No. : AACCN5795L Appellant .. Respondent Appellant by : Ms.Vranda.U.Matkari.DR Respondent by : None Date of Hearing 01.07.2022 Date of Pronouncement 05.07.2022 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The Revenue has filed a Miscellaneous Application No.52/Mum/2022 arising out of CO No.51/Mum/2021 & ITAno.6771/Mum/2019 dated 16-08-2021 for rectification of directions of the Hon’ble Tribunal. 2. DCIT vs. Global Tradex Ltd. 2. None appeared on behalf of the assessee at the time of hearing, and the Ld. Departmental Representative submitted that the Revenue has filed a Miscellaneous Application and the grounds raised are as under: “3. It is prayed that the above mentioned order may be rectified as on the ground no.6 of the cross objection raised by the assessee on the issue of deduction of education case, the tribunal has observed as under: “9 We find the assessee has raised ground no.6 to grant deduction of education cess of Rs.3,54,802/- paid. Contra Ld. DR raised the objections as the ground was raised for the first time and A.O should be provided adequate opportunity to examine the claim. We find the jurisdictional High Court in M/s Sesa Goa Ltd. Vs. JCIT Panaji (423 ITR 426) (Bombay) has observed that the Education cess and Higher Education cess are liable for deduction in computing income chargeable under head of profits and gains of business or profession. We considering the ratio of the decision restore the disputed issue of education cess to the file of assessing officer to examine the calculations and grant the deduction of cess and allow this ground of the assessee in cross objections for statistical purposes.” The same needs to be rectified for the following reasons: a) The claim of deduction on account of education cess is not an expenditure incurred exclusively for the purpose of business. The education cess is an integral part of tax and is also included in the scope and impot of the expression äny rate or tax levied” and consequently the amounts paid towards cess are not liable for deduction in 3. DCIT vs. Global Tradex Ltd. computing the income chargeable under the head “profits and gains of business or profession. b) The above legal position is supported by the judicial decision rendered by Supreme Court in the case of CIT vs. K Srinivasan (1972) 83 ITR 346 (SC) wherein it was held that Health and Higher education cess is an additional surcharge in the nature of income tax.” 3. We heard the Ld.DR submissions and perused the material on record. The contentions of the Ld.DR are that the Finance Bill, 2022 has been passed in which the preposition of Education Cess has been dealt with and the Education Cess is being treated as part and parcel of the tax and the claim of expenses in connection with the Education Cess is not liable to be allowed and therefore the Honble Tribunal directions are required to be rectified. We find the Honble Tribunal has dealt on the disputed issue of Cess at page 9 of the Order and has restored education cess issue to the file of the assessing officer for examination of facts/claim as the assessee has raised the issue for the first time before the Honble Tribunal. We are of the opinion that the Revenue should not have grievance on these directions. The Assessing Officer shall independently deal and examine the claim and is at liberty to consider the judicial decisions, amendments and pass the order on the Merits. Accordingly, we do not 4. DCIT vs. Global Tradex Ltd. find any merits in the miscellaneous application of the revenue and is dismissed. 4. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open court on 05.07.2022 Sd/- Sd/- ( OM PRAKASH KANT) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated 05.07.2022 PK, Sps आदेश े /Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. आ आ / The CIT(A) 4. आ आ ( ) / Concerned CIT 5. ! !" , आ $ %, हमद द / DR, ITAT, Mumbai 6. () * + / Guard file. आदेशान ु सार/ BY ORDER, ! //True Copy// 1. (Asst. Registrar) ITAT, Mumbai