Delhi High Court - Orders
Pr. Commissioner Of Income Tax ... vs Havells India Ltd on 16 May, 2023
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ITA 102/2023 & CM Appl.7866/2023
PR. COMMISSIONER OF INCOME TAX
(CENTRAL)-2 ..... Appellant
Through: Mr Sanjay Kumar, Sr Standing
Counsel with Ms Easha Kadian and
Ms Hemlata Rawat, Advs.
versus
HAVELLS INDIA LTD. ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE GIRISH KATHPALIA
ORDER
% 16.05.2023 [Physical Hearing/Hybrid Hearing (as per request)]
1. This appeal concerns Assessment Year (AY) 2009-10.
2. Although the appellant/revenue has proposed several questions of law, Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/revenue, has addressed his arguments vis-a-vis Question No.(F). The said question reads as follows:
"F. Whether in the circumstances of the case and in law, the Ld. ITAT is right in deleting disallowance of Rs.54,75,037/- made on account of education cess and secondary higher education cess being wrongly claimed as expenses which is not allowable expenses u/s 40(a)(ii) of the Income Tax Act, 1961?"
3. Mr Kumar informs us, that the Income Tax Appellate Tribunal [in short, "Act"] has relied upon the judgment of the Bombay High Court in Sesa Goa Ltd. v JCIT (2020) 423 ITR 426 (Bom.) in reaching a conclusion ITA 102/2023 1/3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2023 at 09:55:48 against the appellant/revenue.
4. It is Mr Kumar's submission, that what was not brought to the notice of the Bombay High Court was the provision of Section 2(11) of the Finance Act, 2012.
5. Mr Kumar will inform us, as to whether the judgment of the Bombay High Court was taken up in appeal by the appellant/revenue. 5.1 Furthermore, Mr Kumar will also place before us, the Finance Act relevant to the concerned AY.
6. We may note, that the amendment with retrospective effect i.e., 01.04.2005 has been made via the Finance Act, 2022 to Explanation 3 appended to Section 40(a)(ii). The said Explanation reads as follows:
"40. Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head "Profits and gains of business or profession",--
(a) in the case of any assessee--
xxx xxx xxx
(ii) any sum paid on account of any rate or tax levied on the profits or gains of any business or profession or assessed at a proportion of, or otherwise on the basis of, any such profits or gains.
xxx xxx xxx Explanation 3.--For the removal of doubts, it is hereby clarified that for the purposes of this sub-clause, the term "tax" shall include and shall be deemed to have always included any surcharge or cess, by whatever name called, on such tax;..."
7. In order to hasten the proceedings, and to obtain the instructions of the other side, issue notice to the respondent via all permissible modes, ITA 102/2023 2/3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2023 at 09:55:48 including e-mail.
8. List the matter on 13.09.2023.
RAJIV SHAKDHER, J GIRISH KATHPALIA, J MAY 16, 2023/pmc Click here to check corrigendum, if any ITA 102/2023 3/3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/09/2023 at 09:55:49