TMI Blog2010 (1) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... 140 of 2009 - - - Dated:- 5-1-2010 - C.N. Ramachandran Nair, V.K. Mohanan, JJ. Jose Joseph for the Appellant T.M. Sreedharan and V.P. Narayanan for the Respondent JUDGEMENT C.N. Ramachandran Nair, J:- 1. The question raised in the appeal filed by the revenue is whether licence fee payable by the respondent under the Abkari Laws for obtaining the right to carry on business in toddy falls within the description of tax, duty, cess or fee referred to in section 43B(a) of the Income-tax Act, 1961 (for short 'the Act') which entitles the assessee for deduction of the expenditure only if payment is made in the previous year. 2. We have heard Standing Counsel appearing for the appellant and Advocate Sri T.M. Sreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aka High Court pertains to the assessment year 1988-89, i.e., for the period prior to the amendment by the Finance Act, 1988 when section 43B covered only tax and duty within it's scope. However, the assessment involved in this case is in the year 1999-2000, i.e., much after amendment and the amended provision applicable to the assessee is the following:- "43B. Certain deductions to be only on actual payment:- Notwithstanding anything contained in any other provision of this Act, a deduction otherwise allowable under this Act in respect of:- (a) any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force, or (b) to (f) ** ** ** shall be allowed irrespec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-amended provision which covers only tax and duty. The court found that the rental or licence fee collected for granting the privilege to vend liquor, is not in the nature of excise duty and so much so, section 43B has no application. Even though we find that the provisions of the Abkari Act of Kerala treat the toddy also as a product of manufacture and excise duty is leviable on the same, but for the exemption granted, we do not think, there is any need for us to consider the scope of these provisions of the Abkari Act because the amended provisions of section 43B take in not only tax and duty, but "cess" and "fee" also. In our view, after the amendment, all the statutory levies viz., tax, duty, cess and fee are covered by section 43B( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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