2021 (1) TMI 1253 - AT - Income Tax

Rectification u/s.254(2) - additional ground raised in respect of deduction claimed on account of education cess which was dismissed by the Tribunal while passing its order as not an allowable expenditure - HELD THAT - We find that this Tribunal admittedly while disposing off its appeal and more particularly in the additional ground raised in respect of deduction claimed on account of education cess, had inadvertantly lost sight of the decision of the Hon ble Rajasthan High Court 2018 (10) TMI 589 - RAJASTHAN HIGH COURT and other Tribunal decisions quoted by the assessee on the impugned issue and had rendered its decision. We are also inclined to accept to the proposition of the ld. Counsel for the assessee that when there is a particular decision of the Hon ble Jurisdictional High Court which was rendered subsequent to the order passed by the Tribunal, the same would constitute mistake apparent from record within the meaning of Section 254(2) of the Act which is amenable to rectification thereon. It is also a fact that the Hon ble Jurisdictional High Court in the case of Sesa Goa Ltd. 2020 (3) TMI 347 - BOMBAY HIGH COURT decided the issue raised in the additional ground in favour of the assessee by holding that the education cess would be entitled for deduction as expenditure. Hence, respectfully following the said decision and in view of various other decisions relied upon by the ld. Counsel for the assessee referred to supra, we direct the ld. AO to grant deduction on account of education cess and allow the additional ground raised by the assessee for the A.Y.2007-08 in its entirety. Accordingly, the order passed by this Tribunal in this regard disposing off the additional ground stands modified. Miiscellaneous Application of the assessee for A.Y.2007-08 is allowed. Non-adjudication of additional grounds as constitute mistake apparent on record warranting rectification u/s.254(2) - additional grounds raised by the assessee on account of claiming deduction of expenditure in respect of Employee Stock Option Plan (ESOP) and deduction in respect of education cess were not at all adjudicated by this Tribunal while disposing off its appeal - HELD THAT - We find that the additional grounds raised on the aforesaid two issues for A.Y.2008-09 have not been adjudicated by this Tribunal while disposing off the original appeal which is amenable to rectification u/s.254(2) of the Act. With regard to deduction claimed in respect of education cess, we have already held for the A.Y.2007-08 in this order supra that the assessee would be entitled for deduction in respect of education cess. We direct the ld. AO accordingly to grant deduction for the same for A.Y.2008-09 also. With regard to deduction claimed in respect of Employee Stock Option Expenditure, since the said issue was not at all adjudicated by the Tribunal, we hereby recall the order passed by this Tribunal for A.Y.2008-09 only for the limited extent of adjudication of this additional ground alone. Miscellaneous Application of the assessee for A.Y.2008-09 is allowed.

Summary

Issues:
1. Claim for deduction on account of education cess for A.Y. 2007-08.
2. Adjudication of additional grounds for claiming deduction of Employee Stock Option Plan (ESOP) and education cess for A.Y. 2008-09.

Issue 1: Claim for deduction on account of education cess for A.Y. 2007-08:
The assessee submitted a Miscellaneous Application seeking rectification of the Tribunal's decision disallowing deduction on education cess, citing a recent High Court decision allowing such deduction. The Tribunal had relied on a Supreme Court decision regarding tax components, but the assessee argued it was not applicable to education cess. The Tribunal had overlooked the High Court decision and other relevant precedents. The Tribunal accepted the mistake, considering the subsequent High Court decision and directed the AO to grant the deduction for education cess for A.Y. 2007-08.

Issue 2: Adjudication of additional grounds for A.Y. 2008-09:
For A.Y. 2008-09, the assessee raised additional grounds regarding deduction for Employee Stock Option Plan (ESOP) and education cess, which were not addressed in the Tribunal's original decision. The Tribunal acknowledged the oversight and deemed it a mistake apparent on record. Following the decision for A.Y. 2007-08, the Tribunal directed the AO to allow deduction for education cess for A.Y. 2008-09. Additionally, as the ESOP deduction issue was not adjudicated, the Tribunal recalled its order solely for the purpose of addressing this specific ground. Consequently, both Miscellaneous Applications for A.Y. 2007-08 and 2008-09 were allowed.

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