TMI Blog2021 (1) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... e decline the assessee s above two substantive grounds in foregoing terms therefore. Admission of assessee s additional ground - HELD THAT:- We are of the opinion that the tribunal s jurisdiction continues right from filing of the appeal till final disposal u/s 254 of the Act. Their lordships landmark judgement in NTPC [ 1996 (12) TMI 7 - SUPREME COURT] has clarified that this second appellate jurisdiction has to be taken in widest than in a narrower sense. We make it clear the hon ble jurisdictional high court s decision (supra); even if taken as directly dealing with the issue, came much prior in time. We thus go by the judicial hierarchy to decline the Revenue s objections regarding admission of asssessee s additional ground. We al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , CIT, D.R. ORDER PER BENCH This assessee s appeal for A.Y. 2011-12 arises from Commissioner of Income Tax (Appeals)-9 [CIT(A) in short] Hyderabad s order dated 29.10.2015 in case no. 0404/DCIT Circle 2(1)/2015-16 involving proceedings u/s 143(3) of the Income Tax Act, 1961 (in short the Act ). Heard both the parties. Case file perused. 2. The assessee has raised the following two substantive grounds in the instant appeal. 1. On the facts and in circumstances of the case and in law, the ld.CIT(A) erred in confirming the action of AO that the income earned by the appellant from letting out its immovable properties is assessable to tax under the head profits and gains of business or profession and not under the he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds in foregoing terms therefore. 4. Next comes the issue between the parties. The assessee has moved its application dated 8.12.2020 during the pendency of instant appeal seeking to raise an additional ground that both the lower authorities ought to have held that higher and secondary education cess paid by the assessee amounting to ₹ 23,93,221/- is an eligible deduction u/s 37 r.w.s. 40(a)(ii) of the Act while computing income under the head profits and gains of business /profession . Mr. Pardiwala has quoted National Thermal Power Corporation vs. CIT [229 ITR 383 (SC)] holding that the tribunal s jurisdiction u/s 254 of the Act has to be interpreted in the widest than in narrower sense. He specifically quoted paras 4 to 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, sought to decline the admission of assessee s additional ground. Learned CIT next referred to hon ble apex court two decisions in M/s SRD Nutrients Pvt Ltd. Vs. CCE in Civil appeal no. 2781-2790/2010 dated 10.11.2017 and Bajaj Auto Ltd. Vs. UOI and others in Civil Appeal no. 3239 of 2019 dated 27.3.2019 that the clinching word tax also includes cess and therefore, he prayed for rejecting assessee s impugned grievance on merits as well. 4.2. Mr.Percy Pardiwala reiterated assessee s stand that it deserves relief on both counts on admission of assessee s additional ground on legal principles followed by favourable adjudication on merits. 5. We have given our thoughtful consideration to the foregoing rival contentions in sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Their lordships have also placed reliance on the CBDT circular to this effect issued way back on 18.5.1967 that the expression tax does not include cess . Coming to Revenue s objection that the relevant facts are not on record, we hold that the asssessee s paper book running into 43 pages and more specifically pages 1 and 3 clearly demonstrate that it had itself added back the education cess amount suo moto. Its further argument that we have to go by hon ble apex court s decisions dealing with central excise law also does not find favour with us in view of hon ble Bombay high court s decision in Sesa Goa Ltd. (supra) specifically dealing with this plea in para 34 onwards thereby concluding that a cess under the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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