LAXMI ORGANIC INDUSTRIES LTD,MUMBAI vs. DY CIT 3 (2)(1), MUMBAI

This appeal by the assessee is directed against the order of Commissioner of Income Tax Appeals-8, Mumbai [hereinafter referred to as the “CIT(A)”] dated 23/10/2019 for the assessment year 2012-13.

In appeal, the assessee has raised solitary ground assailing the findings of CIT(A) in not allowing deduction of Education Cess. The assessee thereafter raised additional ground vide letter dated 19/09/2021 assailing disallowance of deduction of u/s 35(2AB) of the Income Tax Act, 1961 (herein after referred to as “the Act”). The Tribunal vide order dated 05/10/2021 allowed the appeal of assessee in toto. Thereafter, the Department filed Miscellaneous Application No.215/MUM/2022 stating that vide Finance Bill 2022, it has been clarified that Education Cess is not allowable, hence, there is a mistake apparent on record that needs to be rectified. Reliance was also placed on the decision of Hon’ble Supreme Court of India in the case of Chambal Fertilisers and Chemicals Ltd. 145 taxmann.com 420. The said Miscellaneous Application of the Revenue was allowed by the Bench, vide order dated 13/01/2023 and order dated 05/10/2021 was recalled, accordingly. Hence, this appeal is in second round for fresh adjudication of ground no. 1 of the appeal.

In second round, the solitary ground that requires indulgence is reproduced herein below:

Shri Vipul Jain appearing on behalf of the assessee stated at the outset, that on instructions from the assessee he is not pressing ground no. 1of the appeal.

In view of the statement made by learned Authorised Representative of the assessee at Bar, ground no. 1 of the appeal is dismissed as not pressed.

Since, the additional ground has already been decided in favour of the assessee vide order dated 05/10/2021. The appeal of the assessee is allowed pro-tanto.