M/s. Dakshin Haryana Bijli Vitran Nigam Ltd., Hisar V. DCIT, Hisar

ITA 3/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7101 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: S KRISHNAN
• Section: 43B; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. H. S. SIDHU, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 03/DEL/2017 : ASSTT. YEAR : 2010-11 DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD., VIDYUT SADAN, DELHI ROAD, HISAR-125001 (HARYANA) VS DEPUTY COMMISSIONER OF INCOME TAX, HISAR RANGE, HISAR (HARYANA) (APPELLANT) (RESPONDENT) PAN NO. AABCD0033C ASSESSEE BY : SH. S. KRISHNAN, ADV. REVENUE BY : MS. NIDHI SRIVASTAVA, CIT DR DATE OF HEARING: 19.12.2019 DATE OF PRONOUNCEMENT: 09.01.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. CIT (A), HISAR DATED 24.10.2016. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN CONFIRMING THE FOLLOWING ADDITIONS MADE BY THE ASSESSING OFFICER B Y INVOKING SECTION 43B OF THE INCOME TAX ACT, 1961. A) RS.24,67,66,886/- ON ACCOUNT OF OUTSTANDING LIABILITY IN RESPECT OF ELECTRICITY DUTY. B) RS.15,59,81,627/- ON ACCOUNT OF MUNICIPAL TAX. 3. AT THE OUTSET, THE FACTS ARE UNDISPUTED BY BOTH THE PARTIES. A. SECTION 43B OF THE INCOME TAX ACT, 1961 IS NOT APPL ICABLE TO THE OUTSTANDING PAYMENTS ON ACCOUNT OF ELECTRICITY DUTY AS THEY DO NOT FALL UNDER ANY HEAD NAMELY DUTY, CESS OR FEE AS DEF INED IN THE SAID ITA NO. 03/DEL/2017 DAKSHIN HARYANA BIJLI VITRAN NIGAM LTD. 2 SECTION. THE ELECTRICITY DUTY IS PAID BY THE ASSESS EE ONLY AFTER COLLECTION OF SAME FROM THE SUBSCRIBER AS PER THE T ERMS THE ELECTRICITY DUTY HAS TO BE COLLECTED BY THE ASSESSE E AS AN AGENT OF THE GOVERNMENT BUT NOT FOR HIS OWN CONSUMPTION. THE STATE GOVERNMENT CAN TAKE NECESSARY STEPS IN ACCORDANCE W ITH LAW IN CASE THE ASSESSEE COLLECTS THE DUTY FROM THE CUSTOMERS A ND DOESNT PAY TO THE STATE GOVERNMENT. IN THIS CASE, IT WAS SUBMI TTED THE AMOUNTS HAVE NOT BEEN COLLECTED, HENCE THE PAYMENTS HAVE BE EN OUTSTANDING. PLACING RELIANCE ON THE JUDGMENT OF TH E HONBLE HIGH COURT OF KERALA IN THE CASE OF KERALA ELECTRICITY B OARD, HONBLE HIGH COURT KOLKATA IN THE CASE OF CESC LTD. 61 TAXMAN 92 AND KEEPING IN VIEW THE FACT THAT THE AMOUNTS HAVE NOT BEEN CLAIME D IN THE P&L ACCOUNT NO ADDITION IS WARRANTED UNDER THIS HEAD. B. REGARDING THE PAYMENT OF MUNICIPAL TAX, IT WAS SUBM ITTED THAT THE AMOUNTS HAVE NOT BEEN CLAIMED AS DEDUCTION IN THE P &L ACCOUNT. THE FACTS WHICH HAVE NOT BEEN DISPUTED, HENCE WE HO LD THAT DISALLOWANCE ON THE AMOUNT WHICH HAS NOT BEEN CLAIM ED UNDER P&L ACCOUNT CANNOT BE LEGALLY VALID. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/01/2020. SD/- SD/- (H. S. SIDHU) (DR . B. R. R. KUMAR) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED: 09/01/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR