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Facts
For AY 2020-21, the assessee (Capgemini Technology Services Limited, successor to Liquidhub India Private Limited) initially claimed a deduction for Health and Education Cess based on prevailing judicial precedents. Following a retrospective amendment to Section 40(a)(ii) by Finance Bill 2022, the assessee voluntarily withdrew the claim during assessment proceedings. Despite this, the Assessing Officer levied a penalty of Rs. 2,16,963/- under Section 270A for under-reporting income, which was confirmed by the CIT(A).
Held
The Tribunal held that no penalty under Section 270A should be levied, considering the assessee's voluntary withdrawal of the claim due to a retrospective amendment and the debatable legal position prior to the amendment. Additionally, the penalty order was found void ab initio as it was passed against Liquidhub India Private Limited on 17/03/2023, an entity that had merged into Capgemini Technology Services India Limited with effect from 01/04/2020. Consequently, the Tribunal directed the Assessing Officer to delete the penalty.
Key Issues
Whether a penalty under Section 270A is leviable for claiming Health and Education Cess when the claim was voluntarily withdrawn due to a retrospective amendment and the legal position was debatable. Also, whether a penalty order passed against a merged entity that ceased to exist is valid.
Sections Cited
Section 270A, Section 250, Section 155(18), Section 143(3), Section 115JB, Section 40(a)(ii), Section 37(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCHES “SMC” :: PUNE
Before: DR.DIPAK P. RIPOTE & SHRI VINAY BHAMORE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This is an appeal filed by the Assessee against the order of ld.Commissioner of Income Tax(Appeal)[NFAC], passed under section 250 of the Income Tax Act, 1961 for the A.Y.2020-21 dated 02.09.2025 emanating from the Penalty Order passed under section 270A of the Act, dated 17.03.2023. The Assessee has raised the following grounds of appeal : “General and Legal Grounds 1. Impugned order passed by the Ld. CIT(A) is based on incorrect appreciation of facts and incorrect interpretation of law, and therefore erroneous, bad in law, and contrary to the facts and circumstances of the case.
The Ld. Assessing Officer (Assessment unit) ('AO') erred in passing the Penalty Order u/s 270A of the Act dated 17 March 2023 on the name of the Appellant Company which has ceased to exist pursuant to the merger with Capgemini Technology Services India Limited wef. 1st April, 2020, duly approved by National Company Law Tribunal (NCLT') order dated 24 June 2021, thereby making the entire penalty proceedings as void-ab-initio and rendering the Penalty Order u/s 270A to be a nullity in the eyes of the law and liable to be quashed.
Levy of Penalty with respect to disallowance of "Health and Educational Cess":
The CIT(A) has erred in confirming the penalty levied under section 270A of the Act for claiming deduction of Health and Education Cess by the Appellant which was supported by various Judicial precedents
The Ld. AO/CIT(A) has failed to appreciate that the claim of Health and Education Cess was made by Appellant in good faith and hence does not tantamount to under reporting of income as per the provisions of section 270A of the Act.
The Learned CIT (A) has failed to appreciate that the Appellant 2 has voluntary filed a letter for disallowance of Health and Education
The Ld. AO/CTT(A) has failed to appreciate that Form 69 was filed on 30 March 2023 by the Appellant before due date of 31st March 2023 as per Notification no. 111/2022 dated 28-09-2022 issued by Central Board of Direct Taxation (CBDT) and consequently the Appellant is eligible for immunity from levy of penalty under provisions of section 155(18) of the Act.
The Learned CIT(A) has failed to appreciate that the proviso to subsection 18 of section 155 empowers the AO to recompute the total income for such previous year in which the assessee claimed deduction of surcharge or cess and provides indemnity to the Appellant against levy of penalty under section 270A upon timely filing of Form 69.
The Ld AO/CIT(A) has failed to appreciate that notwithstanding the additions made in the original assessment proceedings for the relevant assessment year under section 143(3) of the Act, the Appellant would have still paid tax under section 115JB of the Act.
The additions made in the assessment order under section 143(3) of the Act would simply result in reduction of the available MAT credit to the Appellant, and the Appellant has already given effect to such reduction in the available MAT credit in the subsequent assessment years.
The Learned CIT(A) has erred in levying penalty under section 270A without appreciating the fact that the appellant has not under- reported the income as per the exclusions provided under section 270A(6)(a).
The Appellant submits that the above grounds of appeal are mutually exclusive of and without prejudice to each another.” 3 2.1 Ld.AR for the assessee submitted as under : “3. LHI, in its return of income, based on various judicial precedents for relevant AY had claimed an allowance of Health and Education Cess paid by it. However, vide letter dated
22. June 2022, it withdrew the claim of allowability of 'Health and Education Cess' on account of the retrospective amendment made to the provisions of section 40(a)(ii) of the Act.
The sole addition made to the income of LHI, during the said assessment proceedings, was an amount of INR 14,90,132 on account of withdrawal of the claim of the payment of Health and Education Cess"
The Ld. AO alongwith issuance of the assessment order, also initiated penalty proceedings for alleged under-reporting of income out of mis-reporting of income on account of misrepresentation and suppression of facts. However, penalty amounting to INR 2,31,310 was levied on the Company on alleged underreporting of income.
The crux of the matter, i.e., the reason for levying penalty for alleged under-reporting of income, were the AO's observations that the 'tax liability on the disallowance of "Health and Education Cess is not discharged The relevant portions of the penalty order is reproduced hereinbelow:
"As can be seen from the above letter of 22/06/2022, during the course of assessment proceedings, the assessee agreed for the disallowance of Rs.14,90,132, being the 'Health & Education Cess claimed and also 4 offered to pay taxes thereon.
However, it is seen from the submissions of the assessee in response to the Show Cause Notices issued that the payment for the same has not been made by the assesseee within the time specified, apparently on account of the application u/s. 154 before the AO"
7 In this context, the Company submits that payment of the said disallowance has already been made via adjustment in MAT credit as follows:
7.1 The Company had an outstanding MAT credit of INR 5,99,62,79,248 as of April 01, 2022.
7.2. Considering the suo-moto disallowance of Health and Education Cess of LHI, the Company computed the tax impact of such retrospective amendment as follows in its opening balance itself. The Opening balance of MAT credit of the Company thus stood reduced on account of the said constructive payment of the taxes of INR 2,31,310 and only the balance amount of available MAT credit was brought forward in the AY 2022-23. The said position is tabulated below :
Sr.No. Particulars Amount(INR) 1. Outstanding MAT credits as of April 01, 5,99,62,79,248 2022 2. Less : Tax impact on account of 2,31,310 retrospective amendment of section 40(a)(ii) of the Act [Health and Education Cess] insofar as position of LHI is concerned 3. Less: Tax impact on account of other 32,27,62,439 retrospective amendments [e.g section 40(a)(ii) and section 36(1)(va) of Capgemini (other than sr. no. 2) 5 4. Balance MAT Credit brought forward 5,67,32,85,499 2.2 Ld.AR for the Assessee relied on the following case laws : “i. Copy of the order passed by the ITAT "A" Bench, Pune in the matter of Capgemini Technology Services India Limited [as successor-in- interest of erstwhile Aricent Technologies (Holdings) Limited v. ACIT ii. Pertaining to non-applicability of penal consequences u/s 270A, if claim for deduction u/s 40(a)(ii) was suo-moto withdrawn - GR Infraprojects Ltd v. ACIT [Civil Writ Petition No. 5594/2023] iii. Pertaining to non-applicability of penal consequences u/s 270A, if claim for deduction u/s 40(a)(ii) was suo-moto withdrawn Vistaar Financial Services Pvt v. DCIT [ITA No.735/Bang/2023] iv. Pertaining to non-applicability of penal consequences - First Abu Dhabi Bank P.JSC v. DCIT v. Pertaining to non-applicability of penal consequences u/s 270A, if claim for deduction u/s 40(a)(ii) was suo-moto withdrawn and failure of revenue in showcasing the specific action u/s 270A(9)-IIFL Samasta Finance Limited v. DCIT 1054/Bang/2024 vi. Pertaining to non-applicability of penal consequences u/s 270A, if claim for deduction u/s 40(a)(ii) was suo-moto withdrawn - Global Coal and Mining Pvt. Ltd. v. NFAC [ITA No. 2682/Del/2024) vii. Pertaining to non-applicability of penal consequences in case more than one interpretation was possible-CIT v Calcutta Credit Corporation (1987) 166 ITR 29 (Cal) viii. Pertains to non-levy of penalty where the relevant provision was amended retrospectively, rendering the issue debatable and involving 6 no failure to disclose material facts-CIT v Yahoo India Pvt Ltd [2013] 33 taxmann.com 332 (Bombay)
[A] ix. Pertaining to non-applicability of penal consequences in case of debatable tax position-CIT v Harshvardhan Chemicals and Minerals Ltd. (2003) 259 ITR 212 (Raj.) x. Pertaining to non-applicability of penal consequences in case of debatable tax position-CIT v Reliance Petroproducts (P) Lid (2010) 189 Taxman 322 (SC) xi. Pertaining to non-applicability of penal consequences in case of debatable tax position-CIT v. Gurdaspur Co-operative Sugar Mills Ltd. [2013] 35 taxmann.com 395 (Punjab & Haryana) xii. Pertaining to interpretation of the term 'misinterpretation" Omaxe Ltd. vs. DCIT (2014) 46 taxmann.com 14 (Delhi) xiii. Pertaining to interpretation of the term 'suppression' - Anand Nishikawa Co. Ltd vs. CCE (2005) 2 STT 226 (SC) 20051 xiv. Pertaining to interpretation of the term 'suppression' - P.M. Perianna Pillai v. Commissioner (Commercial Taxes) (1980) 46 STC 94 (Mad.) xv. Pertaining to interpretation of the term 'suppression' - State of Tamil Nadu v. Sri Swamy and Company (1977) 39 STC 85 (Mad.) xvi. Pertaining to non-applicability of penal consequence in case of acceptance of additions to the income Babuji Jacob v. ΙΤΟ [2021] 124 taxmann.com 363 (Madras) xvii. Pertaining to non-applicability of penal consequences just because the assessment proceedings were decided against the assessee - Quippo Telecom Infrastructure (P.) Ltd. v ACIT [2020] 118 taxmann.com 345 (Delhi - Trib.) 7 [A] xviii. Pertaining to non-applicability of penal consequences in case of maintenance of proper accountsCIT v. Mohammed Yakub Mohd. Ibrahim & Co. (1983) 143 ITR 67 (BOM) xix. Pertaining to non-applicability of penal consequences in case of debatable tax position DCIT v. Maradia Copper Extrusion (P.) Ltd. [2017] 88 taxmann.com 748 (Ahmedabad -Trib.) xx. Pertaining to non-applicability of penal consequences in case claim of expense was disallowed in appellate proceedings-CIT v. Rita Malhotra (1985) 154 ITR 550 (Del.) xxi. Pertaining to non-applicability of penal consequences in case disallowance was made due to difference of opinion-CIT v Bacardi Martini India Ltd. (2007) 288 ITR 585 xxii. Pertains to failure of revenue in showcasing the specific action u/s 270A(9) - Schneider Electric Southeast Asia (HQ) Pte. Ltd v. DCIT [2022] 145 taxmann.com 665 (Delhi)
Cases pertaining to Education Cess not being a tax and hence, the same is not required to be disallowed under section 40(a)(ii) of the IT Act, before the retrospective amendment proposed by Finance Act 2022 Jaipuria Samla Amalgamated Collieries Ltd. v. CIT (1971) 82 ITR 580 (SC)
Chambal Fertilisers and Chemicals Ltd v JCIT (ITA No. 52/2018)
Sesa Goa Lid v JOIT (2020) 117 taxmann.com 96 DCIT v. Bajaj Allianz General Insurance Company Ltd. (ITA) Nos 1111 and 1112/Pun/2017) 8 Additional cases being relied upon by the Appellant i. PCIT v. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375 (SC) ii. CLSA India (P.) Ltd. v. DCIT [2023] 149 taxmann.com 380 (Bombay) iii. Thermax Ltd. v. NFAC 170 taxmann.com 249 (Bombay) iv. Reliance Industries Ltd. v. P. L. Roongta [2025] 171 taxmann.com 467 (Bombay) v. Pico Capital Ltd. v. DCIT (P.) ν. [2023] 150 taxmann.com 488 (Bombay) vi. Bennett Coleman and Company Ltd. v. UOI [2023] 153 taxmann.com 21 (Bombay)
Submission of ld.DR : 3. Ld.Departmental Representative(ld.DR) for the Revenue relied on the order of ld.CIT(A).
Findings and Analysis: 4. We have heard both the parties and perused the records. The company Liquidhub India Private Limited was merged into Capgemini Technology Services India Limited vide Order of NCLT dated 24/06/2021 with effect from 1st April 2020.
4.1 In the case of Liquidhub India Private Limited the Assessing Officer has passed a Penalty Order u/s 270A of the Income Tax Act for AY 2020-21 on 17/03/2023 levying penalty of Rs.2,16,963/-.
4.2 This appeal is against the said Penalty u/s.270A of the Income Tax Act.
For A.Y.2020-21, the Assessee in the Return of Income claimed Health and Education Cess as an allowable expenditure. The impugned claim was made on the basis of various decisions of Hon’ble High Courts. Subsequently Income Tax Act was amended by Finance Bill 2022 inserting explanation 3 to Section 40(a)(ii) as under : “For the Removal of doubts it is hereby clarified that the purposes of this sub clause, the term „Tax‟ shall include and shall be deemed to have always included any surcharge or cess by whatever name call on such tax.
Based on the said amendment Assessee filed a letter dated 22/06/2022, withdrawing the claim of deduction of Health & Education cess and accepted the proposed addition.”
5.1 During Assessment Proceedings, Assessee filed letter dated 22.06.2022 in view of the amendment and withdrew the claim of deduction of Rs.14,90,132/-. The relevant part of the letter dated 10 22/06/2022 is reproduced here as under:
Disallowance of education cess u/s 40(a)(ii) of the Act of INR 14,90,132/- It is submitted that the assessee has claimed deduction towards Health and Education Cess (hereinafter referred to as "Cess') amounting to INR 14,90,132 while filing the return of Income filed for the subject AY. The said claim for deduction of Cess has been made by the assessee on the basis of favorable High Court and Tribunal rulings. In addition to this, the assessee also has a favorable ITAT ruling its own case Capgemini Technology Services India Limited Vs DCIT-Circle 11 vide Pursuant to the Finance Bill 2022, there is an amendment brought into the Income-tax Act, 1961 (the Act) by way of insertion of Explanation 3 to section 40(a)(ii) as under:
Explanation 3. For the removal of doubts, it is hereby clarified that for the purposes of this sub-clause, the term "tax" shall include and shall be deemed to have always included any surcharge or cess, by whatever name called, on such tax, Keeping in view the above retrospective amendment, it is now submitted by the assessee to your goodself that the claim of deduction of Cess for the subjected AY amounting to INR 14,90,132 be considered as withdrawn and accordingly the disallowance is requested to be made while concluding the assessment proceedings for this year.
We would also like to draw your goodself's kind attention to the provisions of section 155(18) of the Act, wherein it is stated that when an assessee has claimed a deduction of cess in the return of income for 11 any previous year the same shall be deemed to be under-reported 270A(3) of the Act. However, as per the Proviso to the said section, if the following criteria are fulfilled the claim of cess shall not be deemed to be under-reported income as per section 270A(3). the assessee shall suo moto make an application to the Assessing Officer in the prescribed form and within the prescribed time requesting for recomputation of the total income of the previous year without allowing the claim for deduction of surcharge or cess and, the asssessee pays the amount of tax due thereon, if applicable, within the specified time.
The aforesaid prescribed form to make the application has not been notified till date. Once the form is notified, the assessee shall file the relevant form within the specified time and pay the appropriate amount of tax, if applicable, on the amount of cess claimed as deduction for the year.
In view of the aforesaid discussion, we request your goodself that no penalty proceedings under section 270A should be initiated.
We request you to take the above on records and oblige. We shall be glad to provide any further information /clarification as your goodself may require.” Unquote.
5.2 Thus, vide letter dated 22/06/2022 the Assessee brought to the notice of the AO that the requisite Form as mentioned in Section 155(18) were not notified at that point of time. It has been submitted by the Ld.AR that the assessee filed the said form subsequently. Assessee also submitted as under : 12 Quote, “7.2. Considering the suo-moto disallowance of Health and Education Cess of LHI, the Company computed the tax impact of such retrospective amendment as follows in its opening balance itself. The Opening balance of MAT credit of the Company thus stood reduced on account of the said constructive payment of the taxes of INR 2,31,310 and only the balance amount of available MAT credit was brought forward in the AY 2022-23. The said position is tabulated below :
Sr.No. Particulars Amount(INR) 1. Outstanding MAT credits as of April 5,99,62,79,248 01, 2022 2. Less : Tax impact on account of 2,31,310 retrospective amendment of section 40(a)(ii) of the Act [Health and Education Cess] insofar as position of LHI is concerned 3. Less: Tax impact on account of other 32,27,62,439 retrospective amendments [e.g section 40(a)(ii) and section 36(1)(va) of Capgemini (other than sr. no. 2) 4. Balance MAT Credit brought 5,67,32,85,499 forward 5.3 These facts have not been disputed by Ld.DR for the Revenue.
Referring the letter dated 22/06/2022 of the Assessee, the Assessing Officer in the Assessment Order made addition of Rs.14,90,132/- denying the deduction on account of Health & Education Cess. The AO in the Assessment Order also initiated 13
During the Penalty proceedings Assessee made an elaborate submission, copies of which has been filed by the assessee in the paper book at page 113 to 121, 108 to 111.
The Assessing Officer(AO) levied Penalty u/s 270A for under reporting of Income. Aggrieved by the Penalty Order the Assessee filed appeal before CIT(A) who confirmed the Penalty. Then assessee has filed appeal against the order u/s 250 before this ITAT.
In this case, admittedly assessee has claimed deduction based on the decisions of Hon'ble High Court in the case of Sesa Goa Ltd. Vs. JCIT 117 Taxmann.com 96 (BOM) and ITAT order in Assessee’s own case.
The said issue of Penalty u/s 270A, is decided in favour of Assessee by the Order of ITAT in assessee’s own case in ITA No.1260/PUN/2025. Ld.AR for the Assessee filed copy of the said Order.
ITAT Delhi Bench in the case of Global Coal and Mining Pvt 14 Ltd Vs. NFAC ITA 2682/Del/2024 AY 2020-21 has held as under :
Quote, “The aforesaid explanation makes it clear that insertion of Explanation retrospectively was with sole object of clear the intention of the legislature and make it free from any misinterpretation. Therefore, there was no error on the part of the assessee in claiming education cess as expenses u/s 37(1) of the Act nor any malafide is established as when it was claimed as expenses, there were contrary judgments available and assessee followed one of the view which was in its favour. In view of these facts and by following the decisions of Co- ordinate Bench of Bangalore in case of IIFL Samasta Finance Limited vs. DCIT (supra), in our opinion penalty could not be levied u/s 270A of the Act in the hands of assessee for claim of Education Cess which was brought to tax based on the retrospective amendment in Act. Accordingly, we hereby direct the AO to delete the penalty” Unquote.
Respectfully following the decisions of ITAT (supra) we direct the Assessing Officer to delete the Penalty u/s.270A of the Act.
It is also noted that the Penalty u/s.270A dated 17/03/2023 was passed by the Assessing Officer in the name of Liquidhub India Private Limited, whereas Liquidhub India Private Limited had already merged in Capgemini Technology Services India Ltd w.e.f 1st April 2020 vide Order of NCLT dated 24/06/2021.
In the result, the Appeal filed by the Assessee is allowed. Order pronounced in the open Court on 19 January, 2026.
Sd/- Sd/- VINAY BHAMORE Dr.DIPAK P. RIPOTE JUDICIAL MEMBER ACCOUNTANT MEMBER 15 पपणे / Pune; ददिधंक / Dated : 19 Jan, 2026/ SGR