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TMI Blog2019 (1) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. 2. Briefly stated, the facts of case are that in its return of income, the assessee has claimed MAT credit of Rs. 10,41,894/- u/s 115JAA pertaining to AY 2010-11. The AO however restricted the MAT credit to Rs. 6,59,098/- as claim by the assessee in its return of income for A.Y 2010-11 and secondly, the AO held that the MAT credit so worked out by the assessee, it has included surcharge and education cess which is not to be included for calculating the MAT credit as only tax is to be allowed to be carried forward as MAT credit and not surcharge and education cess as contemplated u/s 115JAA of the Act. 3. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A) has returned a finding that as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ld. AR referred to the decision of Hon'ble Calcutta High Court in the case of Srei Infrastructure Finance Ltd. vs. DCIT [2016] 395 ITR 291 (Cal) wherein the earlier decision of the Hon'ble Allahabad High Court in case of CIT v. Vacment India [2014] 369 ITR 304 (All) has been distinguished and it has been held that both the surcharge and education cess are part of income tax. 5. The question of law which came up for consideration before the Hon'ble Calcutta High Court (supra) was whether on the facts and in the circumstances of the case and in law, the Tribunal was right in confirming the set-off of MAT Credit under section 115JAA brought forward from earlier years against tax on total income including surcharge and education cess ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the amount of surcharge and cess has been spelt out on the basis whereof it can be said that the intention is that part of the amount realized by way of income tax is earmarked for being spent in education and higher education. 10 We are, so such, of the opinion that the view taken by the learned Tribunal is a correct view. ...... No elaborate reasoning is, as such required to show why are we unable to follow the judgment of the Allahabad High Court in the case of Vacment India (supra)? .......... 12. There can be no quarrel with the aforesaid view. But the same has no application to this case because the form for the relevant year, which provided inspiration to the assessee to take this point, did in fact seek to control or der ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude surcharge and education cess or not. 9. In this regard, we refer to the provisions of section 115JB of the Act and in particular Explanation - 2 wherein the amount of income tax has been defined to include surcharge and education cess and the same is reproduced as under:- "[Explanation 2.- For the purposes of clause (a) of Explanation 1, the amount of income-tax shall include- (i) any tax on distributed profits under section 115-O or on distributed income under section 115R; (ii) any interest charged under this Act; (iii) surcharge, if any, as levied by the Central Acts from time to time; (iv) Education Cess on income-tax, if any, as levied by the Central Acts from time to time; and (v) Secondary and Higher Education Cess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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