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Income Tax Appellate Tribunal, “J” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAJESH KUMAR
Date of Hearing – 11.02.2021 Date of Order – 24.02.2021 O R D E R PER SAKTIJIT DEY. J.M. 2 Overseas Plymers Pvt. Ltd.
The captioned appeals have been filed by the assessee challenging two separate orders, both dated 11th September 2018, passed by the learned Commissioner OF Income Tax (Appeals)–57, Mumbai, for the assessment years 2011–12 and 2012–13.
Grounds no.1, 2 and 3 of both the appeals are identical except the variance in the figures and they relate to Transfer Pricing issues.
At the outset, the learned Counsel for the assessee, on instructions, submitted that due to smallness of the amount involved, the assessee would not like to press these grounds. Considering the aforesaid submission of learned Counsel for the assessee, grounds no.1, 2, and 3 in both the appeals are dismissed as not pressed. However, the issues raised in these grounds are kept open for adjudication in case they arise in assessee’s case in future.
Besides the aforesaid grounds, by way of letter dated 13th 4. October 2020, the assessee has raised ground no.4 as additional ground in both the appeals concerning non–grant of deduction for education cess and secondary and higher education cess on the income tax paid for the relevant assessment years.
The issue raised in the additional ground being a purely legal issue which can be decided without investigating into fresh facts, we are inclined to admit the additional ground.
3 Overseas Plymers Pvt. Ltd.
We have considered rival submissions and perused material on record. It is the contention of the assessee that education cess and secondary and higher education cess has to be allowed as deduction while computing the income from business and profession.
The learned Departmental Representative has opposed the aforesaid contention of the learned Counsel for the assessee.
As we find, in case of Sesa Goa Ltd. v/s JCIT, [2020] 117 Taxman.com 96 (Bom.), the Hon'ble Jurisdictional High Court has held that education cess and higher and secondary education cess are liable for deduction while computing income under the head Profit and Gain from Business or Profession. The same view has been expressed by the Hon’ble Rajasthan High Court in Chambal Fertilizers and Chemicals Ltd. v/s JCIT, judgment dated 31th July 2018. In fact, in assessee’s own case in Assessment Year 2013–14 vide ITA no.6754/Mum./2018, dated 17th December 2020, the Tribunal following the aforesaid judicial precedents has allowed deduction of educational cess and higher and secondary education cess from the income computed under the head Profit & Gains of Business or Profession. In view of the aforesaid binding judicial precedents, we direct the Assessing Officer to allow deduction of education cess and secondary and higher education cess from the income computed under 4 Overseas Plymers Pvt. Ltd.
the head Profit and Gain of Business or Profession. This ground is allowed in both the appeals.
In the result, appeals are partly allowed. Order pronounced in the open Court on 24.02.2021