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TMI Blog2020 (2) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 07.01.2013 passed by Commissioner of Income-tax u/s. 263 of the Act, assessment was taken up and concluded by order dated 30.01.2014. Since the issues arisen in the appeals of the assessee and the Revenue are emanated from common set of facts, we deem it just and convenient to dispose of them all by this common order. Appeals for A.Y. 2008-09: 3. The only ground in assessse's appeal relates to the addition made u/s. 43B in respect of Municipal Tax. During the assessment proceedings, Ld. Assessing Officer noticed that the statutory liability towards Electricity Duty and Municipal Tax was outstanding as was revealed from the perusal of Schedule-16. The assessee explained that the payment of Municipal Tax was made to the Municipal Committee on the basis of collection from the consumers and not on the basis of amount billed and that the amount of Municipal Tax payable to Municipal Committee is adjusted against the payment of electricity bills receivable from Municipal Committee on monthly basis. In respect of Electricity Duty, the submission of the assessee was that Electricity Duty billed to consumers in energy bills on monthly basis and its liability is shown as payable to Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not its income and the Government of Haryana makes an adjustment in respect of the Revenue Subsidy payable to the assessee against the amount of Electricity Duty collected by the assessee and payable to the Government. Ld. AR submitted that section 43B of the Act is applicable in respect of deduction claimed in the profit and loss account and in this matter, no amount of Municipal Tax was debited against the business profits and therefore, section 43B has no application to the facts of the case. 8. He submitted that similar issue has arisen in assessee's own case for the assessment year 2006-07 also and the coordinate Bench of this Tribunal in ITA No. 3411 and 3217/Del/2016 by order dated 24.12.2019 dealt with the same vide para 16 to 18 and reached a conclusion that disallowance u/s. 43B of the Act is not sustainable. 9. Learned DR places reliance on the orders of the Assessing Officer. 10. As submitted by the ld. AR, both these issues are covered by the order of Co-ordinate Bench of Tribunal in ITA No. 3411 and 3217/Del/2016 by order dated 24.12.2019, the relevant observations of the Tribunal at para 16 to 18 read thus : 16. Coming to the merits of the addition upheld by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no disallowance has been made in any of the year. 17. Further, the Hon'ble Calcutta High Court in the case of CESC Ltd. vs CIT (supra) has held that where the assessee merely acts as Collecting agent for the State Government and pays the same to the State Government on collection, then, the licencee merely acts as a conduit and the Electricity Duty was not chargeable to the licencee. It was concluded by holding that Electricity Duty not being a sum payable by the assessee as a primary liability by way of tax, duty, cess or fee, then provisions of section 43B of the Act were not attracted to the licencee/assessee in respect of the Electricity Duty collected by it for being passed on to the State Government. 18. Applying the said proposition to the issue before us, we hold that there is no merit in the orders of the authorities below in making the aforesaid disallowance u/s 43B of the Act. We reverse the same and allow Ground No.2 raised by the assessee on merits. 11. Since facts are identical and no contrary decision is brought to our notice, while respectfully following the view taken by co-ordinate Bench, we hold that both the additions u/s. 43B cannot be sustained. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Apex Court in the case of Excel Industries Ltd. (supra), we endorse the view taken by the ld. CIT(A) and hold that this is a revenue neutral transaction. We, therefore, affirm the finding of the ld. CIT(A) on this issue. 16. Ground No. 2 of Revenue's appeal relate to the deletion of addition of Rs. 71,47,71,224/- on account of provision of surcharge levied but not realized. On this aspect, the case of the assessee is that they have been levying surcharge on bills issued if payment is not within time allowed, but it has been a general practice that most of the rural area consumers of domestic and agriculture category do not make the payment of the original bills and therefore, surcharge remains unpaid. The Government, therefore, was introducing waiver of surcharge from time to time to reduce the debtors because recovery proceedings were not worth the recovered amount. Ld. CIT(A) considered the fact that this has been a recurrent issue decided in favour of the assessee by first and second appellate authorities in respect of assessment year 2006-07 and High Court also held the issue in favour of the assessee. 17. Revenue does not dispute the fact that Hon'ble High Court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 of Revenue's appeal is dismissed. 22. Ground No. 4 of Revenue's appeal relates to deletion of a sum of Rs. 1,38,97,653/- on account of loss due to flood, cyclone and fire. The assessee submitted that they have incurred such expenditure on account of loss of fixed assets spread over 52 divisions throughout Southern part of Haryana and bound to incur due to natural calamities. Such expenses were to be incurred to revive the electricity supply and to get it continued. According to assessee, such expenditure is regular feature of the business and cannot be said to be capital in nature. Ld. Assessing Officer did not accept the contention of the assessee and held that in the absence of any separate figure in respect of repair and maintenance head from the other expenses, the claim of the assessee cannot be allowed. Ld. CIT(A) while following the view taken in assessee's own case for assessment year 2006- 07 allowed this ground. 23. On a perusal of the order for assessment year 2006-07 in assessee's own case, we find that a co-ordinate Bench of this Tribunal was of the view that the nature of expenditure is the determining factor and not the nomenclature and having regard to the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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