TMI Blog2015 (12) TMI 1793X X X X Extracts X X X X X X X X Extracts X X X X ..... N.K. SAINI, A.M. 1. This is an appeal by the Assessee against the order dated 01/04/2015 of the Ld. CIT(A)- 1, Gurgaon. 2. The 1st issue in this appeal requiring the adjudication is as to whether the ld. CIT(A) was justified in upholding the levy of education cess @ 3% in addition to the tax rates prescribed in double taxation avoidance agreement (DTAA) entered by India with Germany, China and the United States of America (USA). 3. Facts of the case in brief are that the AO raised the TDS liability on account of the payments made by the assessee to non-resident @ 10.30% (10% tax + 0.30% on account of secondary and higher education cess) as against 10% deducted by the assessee. 4. The assessee carried the matter to the ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore Pte. Ltd. vs. ADIT, ITA No. 5604/Del/2010 order dated 17.02.2012. 7. In his rival submissions the ld. DR reiterated the observations made by the ld. CIT(A) and strongly supported the impugned order. 8. We have considered the submissions of both the parties and carefully gone through the material available on the record. It is noticed that an identical issue having similar facts was a subject matter of adjudication before the ITAT Kolkata Bench B in ITA No. 1458/ Kol./2011 for the assessment year 2009-10 in the case of DIC Asia Pacific Pte Ltd. vs. Assistant Director of Income Tax International Taxation (1), Kolkata wherein relevant findings have been given in para 9 and 10 of the order dated 20th June, 2012 which read as under -: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, deserves to succeed on this issue. 9. Since the facts of the case under consideration are identical to the facts involved in the aforesaid referred to case of DIC Asia Pacific Pte Ltd. So, respectfully following the order dated 10th June, 2012 in the said case we set aside the impugned order and direct the AO not to levy the education cess in respect of tax liability of the assessee company. 10. As regards to ground no. 2 relating to charging of interest u/s 201(1A) of the IT Act, 1961 it was the common contention of both the parties that it is consequential in nature. We, order accordingly. 11. In the result appeal of the assessee is allowed. (Order Pronounced in the Open Court on 29/12/2015). - - TaxTMI - TMITax - In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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