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2022 (1) TMI 1367 - AT - Income TaxTP Adjustment - specific domestic transaction as the case is covered u/s 92 BA - HELD THAT:- The undisputed fact is that as per sub-clause (r) of section 92 BA the assessee has undertaken the transaction which has exceeded the prescribed limit. It is also not in dispute that vide Finance Act,2017 w.e.f. 01.04.2017 the said sub-clause (r) of section 92BA has been omitted. We find that an identical issue came up for adjudication before the coordinate bench, Bangalore in [2017 (12) TMI 1719 - ITAT BANGALORE] held court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceeding will continue. We, therefore, set aside this issue to the file of the Assessing Officer. The Assessing Officer is required to adjudicate the issue in accordance with law, after affording sufficient opportunity of being heard to the assessee. Disallowance of deduction u/s 80IA - rate for eligibility of deduction - AR stated that the rate applied by the assessee is not correct and it is the say of the counsel that the rate charged by the electricity board to its consumers should be taken as rate for eligibility of deduction under section 80IA of the Act - HELD THAT:- We are of the considered view that this contention of the ld. counsel for the assessee is correct. The counsel has applied the rate which it has charged to the electricity board whereas the rate should have been the rate charged by the electricity board to its consumers. We, therefore, set aside this issue to the file of the Assessing Officer. The assessee is directed to furnish the rates charged by the electricity board to its consumers and the Assessing Officer is directed to verify the same and decide the issue afresh. Ground No. 4 is allowed for statistical purposes. Claim of education cess as deductible u/s 37 - HELD THAT:- This issue has been extensively considered by the Hon’ble High Court of Bombay in the case of Sesa Goa [2020 (3) TMI 347 - BOMBAY HIGH COURT] We find that the co-ordinate bench has followed the decision of the Hon’ble Supreme Court in the case of K Srinivasan [1971 (11) TMI 2 - SUPREME COURT] However, the issue before the Hon’ble Supreme Court was whether the surcharge is part of tax or not. Whereas the issue before the Hon’ble Bombay High Court in the case of Sesa Goa [2020 (3) TMI 347 - BOMBAY HIGH COURT] was whether education cess is allowable as expenditure or not. Therefore, the decision of the Hon’ble Bombay High Court is directly on the claim of the assessee and respectfully following the same, we direct the Assessing Officer to allow the claim of deduction in respect of education cess paid by the assessee. Ground number 5 and additional ground is allowed.
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