Question And Answer
Subject: MA on the ground of latest amendment about claim of education cess
Querist: Ruchi
Answered by:
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Date: January 13, 2023
Query asked by Ruchi

In the case of the assessee co for A.Y 2014-15,  Hon’ble ITAT has consider the additional ground about claim of educational cess as allowable expenditure on the basis of decision of jurisdictional HC and allowed the claim and directed the AO to ascertain the correct amount of education cess and then allow a deduction for it, after allowing opportunity of hearing to the assessee (Order of ITAT dated 17.08.2021)

Department has filed an MA on 12.08.2022 on the ground that Tribunal has not considered the decision of Supreme Court in the case of CIT vs. K. Srinivasan (1972) 83 ITR 346 (SC).

Whether the MA is maintainable ?

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Non-consideration of a decision of the Hon’ble Supreme Court and Jurisdictional High Court is an apparent mistake as per the decision of the Hon’ble Supreme Court in the case of ACIT v. SaurashtraKutch Stock Exchange Ltd.[2008] 305 ITR 227 (SC).

Further, the Hon’ble Supreme Court in the case of JCIT v. Chambal Fertilisers & Chemicals Ltd. [2022] 145 420 (SC) has clarified that Education cess on rate or tax levied on PGPB is to be disallowed given the retrospective amendment made by Finance Act, 2022 to section 40(a)(ii) of the Act w.r.e.f. April 01, 2005.

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