TMI Blog2016 (12) TMI 1637X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 7-12-2016 - D. Manmohan (Vice President) And B. Ramakotaiah (Accountant Member) For the Revenue : K. J. Rao For the Assessee : P. Murali Mohan Rao ORDER B. Ramakotaiah (Accountant Member) This M.A. preferred by the Assessing Officer against the order of ITAT in ITA No. 418/Hyd/2014, dated 22/12/2015. 2. Revenue in appeal in this case treated as withdrawn/not pressed following CBDT s Circular No. 21/2015 dated 10/12/2015 as mandatory limit for preferring appeal of ₹ 10 lakhs was not fulfilled in this case. 3. In the M.A., the Assessing Officer contends that tax paid in this appeal is ₹ 10,19,700/-, which is more than the mandatory limit of ₹ 10 lakhs. 4. Ld. Counsel on the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax effect should be worked out without including cess and, therefore, in the present case, the present appeal of the revenue is hit by the Board s Instruction. Ld. Counsel for the assessee has placed on record another decision of the coordinate bench at Chennai A Bench in the case of ACIT Vs. Shri R. Viswanathan in M.P. No. 155/Mds/2011, dated 23/09/2011, wherein by referring to section 2(43) about definition of tax, it was held that tax as per the definition would include super tax and also fringe benefit tax, but, not surcharge. In view of the above, it was submitted that tax effect has to be calculated only on the tax part excluding surcharge and cess. Ld. Counsel also has placed on record a recent order of ITAT, Mumbai D Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will mean quantum of penalty deleted or reduced in the order to be appealed against. Nothing has been mentioned in the above definition to show that tax will include surcharge for the purpose of applying the said Circular. Now if we look at the definition of tax as per subsection (43) of Section 2 of Income-tax Act, 1961, it runs as under:- (43) tax in relation to the assessment year commencing on the 1st day of April, 1965, and any subsequent assessment year means income-tax chargeable under the provisions of this Act, and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date [and in relation to the assessment year commencing on the 1st day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles laid down by the Hon ble Delhi High Court in the case of Dalmia Cement (Bharat) ltd., we are of the opinion that surcharge and education cess should not be included while calculating the tax effect. Since the tax thereon is ₹ 9 lakhs, which is less than ₹ 10 lakhs, we are of the opinion that there is no merit in the MA filed by the revenue. 7. Even though the learned counsel, in this case, objected to filing the MA belatedly by the revenue, in view of the revised provisions, we are not considering it as the same will be dealt separately, as there is no merit in the MA on the tax effect. 8. In the result, MA filed by the revenue is dismissed. Pronounced in the open court on 7th December, 2016. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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