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TMI Blog2022 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... d., New Delhi, he submitted that though the assessee is different, but, the issues involved in that appeal are also identical to the issues raised in M/s. Ramesh Electric Works, New Delhi. He, therefore, submitted that the submissions made and argued in one appeal, would be applicable to other appeals also and therefore all the appeals can be heard together. The Ld. D.R. did not controvert to the aforesaid submissions of the Learned A.R. We, therefore, for the sake of convenience, proceed to dispose of all the appeals by way of consolidated order, but, however, proceed with narrating the facts for the A.Y. 2018- 2019 in ITA No.1245/Del./2021. 3. The assessee is a partnership firm engaged in the business of execution of Government works contracts. The assessee electronically filed its return of income for the A.Y. 2018-19 on 09.10.2018 declaring income of Rs. 94,23,418/-. Thereafter, the CPC Bangalore issued an intimation dated 16.10.2019 under section 143(1) of the I.T. Act, 1961 wherein disallowance of Rs. 20,52,429/- was made on account of late deposit of ESI & PF and thus the total income was determined at Rs. 1,14,75,847/-. Aggrieved by the order of the A.O. assessee carried t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the cases of Azamgarh Steel & Power vs CPC in ITA No.1626/Del/2020 dated 31.05.2021 and CIT vs. AIMIL Ltd. [2010] 188 Taxman 265 (Delhi) and the decision of Delhi Tribunal in the case of Ajay Mehta, Gurgaon, Haryana vs. ADIT, CPC Bengalore vide ITA.No.849/Del/2021, order dated 29.10.2021. 8. The Ld. D.R. on the other hand supported the orders of the lower authorities and also placed reliance on the decision of Hon'ble Tribunal in the case of Vedvan Consultants Pvt. Ltd. vs DCIT in ITA No.1312/ Del/2020 order dated 26.08.2021. He also submitted that the amendment brought out by Finance Act 2021 would be applicable to the present case as by the amendment it has been clarified that provisions of Section 43B shall not apply and shall be deemed never to have been applied to a sum received by the assessee from any of his employees to which the provisions of sub clause (x) of Clause (24) of Section 2 applies. 9. We have heard the rival submissions and perused the material available on record. The issue in the present grounds is with respect to the delayed deposit of PF/ESIC contributions. Before us, the Learned AR has pointed to the statement of the deposits made during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first time. He submitted that Ground raised is a legal ground which was be raised at any time by the assessee and it does not require any investigation of fresh facts. He further submitted that in the interest of justice, the ground be admitted and the same be adjudicated. In support of his contentions, he relied on the decision of Hon'ble Apex Court in the case of NTPC [1998] 229 ITR 383 (SC). 12. The Ld. D.R, however, objected for admission of the ground and submitted that the plea was never made before the lower authorities. 13. On the issue of admission of additional ground not raised before lower authorities, we have heard the rival submissions and perused the material on record. We find force in the arguments of the Learned A.R. that the grounds raised is legal in nature. In view of the Judgment of Hon'ble Supreme Court in the case of NTPC (supra), wherein the Hon'ble Apex Court has held that "the purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law". It was further held that "as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving as under : "33. By way of additional ground, the assessee has claimed deductibility of education cess. 34. Before us, the ld. counsel for the assessee stated that in the return of income filed for relevant A.Ys, the assessee did not claim deduction for education cess paid before the due date for filing return of income for subject A.Ys It is the say of the ld. counsel for the assessee that the Hon'ble Rajasthan High Court in the case of Chambal Fertilizers and Chemicals Limited in ITA No.52/2018 order dated 31.07.2018 has held that education cess is an allowable deduction while computing the income under the head "Profits and gains from profession or business". 35. Even the CBDT, in its Circular No. 91/58/66-ITJ(19) dated 18.05.1967 has clarified that the word "Cess" has been omitted from clause and effect of omission of the word "Cess" is that only taxes paid are to be disallowed in the assessments for the years 1961-63 onwards. 36. In light of the decision of the Hon'ble Rajasthan High Court [supra] we direct the Assessing Officer to allow claim of deductibility of cess from the income in the captioned A.Ys. Additional ground in all the appeals is allowed." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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