TMI Blog2019 (8) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the Supply surcharge, Inspection fee, Electricity Duty u/s 43B - HELD THAT:- The Jurisdictional High Court in assessee s own case [ 2010 (11) TMI 127 - KERALA HIGH COURT] wherein it was held when s. 43B(a) speaks of the sum payable by way of tax etc., the said provision is dealing with the amounts payable to the sovereign qua sovereign, but not the amounts payable to the sovereign qua principal. Therefore s. 43B cannot be invoked in making the assessment of the liability of the appellant under the IT Act with regard to the amounts collected by the appellant pursuant to the obligation cast on the appellant under s. 5 of the Electricity Duty Act, 1963. - In view of the above judgment of the Jurisdictional High Court, we are inclined to dismiss this ground of appeal of the Revenue. Computation of MAT income u/s 115JB - HELD THAT:- Jurisdictional High Court in assessee s own case (supra) wherein it was held assessee, a statutory corporation constituted under s. 5 of the Electricity Supply Act, 1948, is not a company for the purpose of Companies Act and is not required to keep and maintain its accounts in the manner specified in the said Act and, therefore, the fiction la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reached finality as the same is pending before the Apex Court. 5. For these and other grounds that may be advanced at the time of hearing the order of the learned Commissioner of appeals, Trivandrum on the above points may be set aside and that of the Assessing Officer restored. 3. The facts of the case are that the assessee filed return of income for AY 2005-06 on 31.10.2005 declaring total income of Rs. Nil. The assessment under section 143(3) of the I.T. Act was completed on 24.12.2007 by assessing total income at ₹ 3,81,97,748/- under normal provisions and ₹ 204,41,69,768/- under section 115JB of the Act. Subsequently, the Assessing Officer issued notice under section 148 of the Act on 30.03.2010. The assessment under section 143(3) r.w.s. 147 of the Act was completed on 31.12.2010 by assessing total income at ₹ 3,81,97,748/- and ₹ 204,41,69,768/- under section 115JB of the Act. The reasons for reopening the assessment were communicated to the assessee vide letter dated 27.09.201. While computing the total income, the Assessing Officer reckoned ₹ 155,00,21,113/- towards electricity duty collected by the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income escaping assessment. 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the electricity duty payable u/s. 4(1) of the Kerala State Electricity Duty Act, 1963 amounting to ₹ 15,50,02,113. Electricity duty u/s. 3(1) of the above Act amounting to ₹ 54,98,40,000 and supply surcharge payable under the above Act amounting to ₹ 5,26,62,852/- levied and unpaid are not to be treated as the income of the assessee for the assessment year on the ground that the same are trading receipts covered by section 43B of the Act. The electricity Duty u/s. 4(1) of the Act and supply surcharge payable under Kerala State Electricity Duty Act, 1963 are not items of trading receipts being amounts collected by the Board only as an intermediary agent and there is no liability on the part of the Board to make payment of these sums to the Govt. if it is not collected from the consumers and on these grounds it was held by ITAT, Ahmedabad Bench in the case of Ahmedabad Electricity Co. (P) Ltd. vs. ITO that such duties/supply discharge collected by Electricity companies are not in the same nature of sales or other taxes, which are levied under other Statutes since in those cases there is a statutory duty to make payment of said tax or duty even if there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaking order on the issue. 6.5 When these issues were subject matter of appeal before the CIT(A) in the case of original assessment, in our opinion, the Assessing Officer cannot re-visit the same by re-opening the assessment u/s. 147 of the Act and also in view of second proviso to section 147 which reads as follows: Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. [Emphasis Supplied] 6.6 Further, the Jurisdictional High Court in assessee s own case reported in (2010) 329 ITR 91 has deleted the addition made u/s. 43B with regard to supply surcharge, inspection fee and electricity duty and liability u/s. 115JB of the Act in favour of the assessee. Being so, in our opinion, re-opening of the assessment is bad in law and hence, the assessment order passed u/s. 147 of the Act vide order dated is 31.12.2010 is quashed. The appeal of the Revenue in ITA No.52/Coch/2019 is dismissed. ITA No. 53/Coch/2019 : AY 2006-07 7. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty collected to the Government had been spelt out in clear terms in the relevant statute and it cannot be held as not liable to pay the duly collected to the State Government on the ground that the relationship is only one of principal qua agent and hence provisions of section 43B is applicable . 3. The Ld. Commissioner of Income-tax(Appeals) erred in concluding that the appellant is not liable for MAT u/s 1 15JB: (i) The Learned Commissioner of Income-tax(Appeals) failed to note that the Hon'ble Kerala High Court's decision in assessee's own case for the earlier years (A Ys 2002-03 to 2005-06) reported in 329 ITR 91 and relied on by him on the issue of liability u/s. 115JB has not become conclusive as the SLP filed by the department against this order is pending for decision before the Hon'ble Apex Court. (ii) The Learned Commissioner of Income-tax (Appeals) ought to have noticed that the decision of Hon'ble HC of Kerala on the applicability of sec. 115JB to the assessee was wrongly based on CBDT Circular No. 762 dated 18.02.1998 which pertains only to sec. 115J 115JA and not sec. 115JB. Section 115JB of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as income for the purpose of the Act. Those questions will have to be independently examined, having regard to the other provisions of the IT Act, primarily by the assessing authority. In view of the above judgment of the Jurisdictional High Court, we are inclined to dismiss this ground of appeal of the Revenue. 11. Regarding Ground No. 3, the facts of the case are that the assessee had not computed the income chargeable under section 115JB of the Act in the return of income filed. The Assessing Officer had computed MAT income under 115JB of the Act at ₹ 331,75,83,578/-. 12. On appeal, the CIT(A) observed that the Assessing Officer had also observed that the issue of MAT tax liability was covered in favour of the assessee by the decision of Hon'ble High Court of Kerala vide order dated 12.11.2010 for AY 2002- 03 to 2005-06. Following the decision of jurisdictional High Court, the CIT(A) held that the assessee wass not liable for MAT tax under section 115JB of the Act and allowed this ground of the assessee. 13. After hearing both the parties, we find that a similar issue was considered by the Jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an annual statement of accounts, balance sheet, etc. in such form as may be prescribed by the Central Government. Thus, the appellant though is deemed to be a company -both by virtue of operation -of s. 80 of the Electricity Supply Act for the purpose of IT Act and by virtue of the definition of the expression company under the IT Act-the appellant is required to keep and maintain its accounts in a manner specified by the Central Government, and not in the manner specified in the Companies Act. When s. 115B was introduced, the section expressly excluded from its operation bodies like the appellant. Coming to s. 115JA, though such express exclusion is absent, the CBDT issued a Circular No. 762, dt. 18th Feb., 1998 excluding the bodies like the appellant from the operation of the said section. Though under the normal rules of interpretation of statutes the omission of a clause which existed in the statute at some point of time by a subsequent amendment would indicate that the legislature intended not to give the benefit of such clause any more to those who were getting the benefit of such exclusion clause, it Is not an absolute rule. The other at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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