TMI Blog2020 (1) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax (A), Pune 1 dated 14.03.2017 for the assessment year 2008-09. 2. The relevant facts as culled out from the material on record are as under :- Assessee is a company engaged in the business of General Insurance. Assessee electronically filed its return of income for A.Y. 2008-09 on 29.09.008 declaring total income at ₹ 98,41,65,289/-. Subsequently, assessee revised the return of income wherein the income was declared at ₹ 98,74,32,790/-. The case was selected for scrutiny and thereafter assessment was framed u/s 143(3) of the Act vide order dated 29.10.2012 and the total income was determined at ₹ 1,75,00,85,820/-. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A) who vide order dated 14.03.2017 (in appeal No.CIT(A), Pune 1/10725/2016-17) dismissed the appeal of the assessee. Aggrieved by the order of Ld.CIT(A), assessee is now in appeal before us and has raised the following effective ground : Ground No.1 : Disallowance of Contribution to Environment Relief Fund Liability of ₹ 74,03,321/- The learned CIT(A) erred in upholding the action of the Assessing Officer ( AO ) in disal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant can claim the same in the year of payment. The appellant also admitted that such claim was rejected by DRP in the A.Y. 2008-09. Accordingly, I do not find any merit in the ground and the same is dismissed. 7. As a part of the ground, the appellant also craves leave to alter, amend, delete or add to any of the above grounds of appeal. Since, no such action has been taken up in this regard, the same is dismissed. Aggrieved by the order of Ld.CIT(A), assessee is now before us 3. Before us, at the outset, Ld.A.R. submitted that identical issue arose before the Tribunal in assessee s own case for A.Y. 2006-07 in ITA No.1653/PUN/2015 order dated 21.01.2019 and submitted that the Co-ordinate Bench of the Tribunal while deciding the issue in favour of the assessee has held that the amount cannot be added u/s 43B of the Act and there is no question of applicability. He pointed to the relevant findings and observations of the Tribunal and thereafter submitted that since the facts in the year under consideration are similar to the facts of assessee s own case in A.Y. 2006-07 in ITA No.1653/PUN/2015 (supra) and following the order of Co-ordinate Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Public Liability Fund Act, in the absence of any such fund being created till the due date of filing of the return of income and, hence, not being contributed, whether can be added as income of the assessee under section 43B of the Act? 11. The relevant provisions of the Public Liability Fund Act, 1991 are as under:- 4(1) Every owner shall take out, before he starts handling any hazardous substance, one or more insurance policies providing for contracts of insurance thereby he is insured against liability to give relief under sub-section (1) of section 3;. xxxxxx 4(2C) Every owner shall also, together with the amount of premium, pay to the insurer, for being credited to the Relief Fund established under section 7A, such further amount, not exceeding the amount of premium, as may be prescribed.; 12. The case of the assessee before us is that the amounts collected towards ERF were specifically identified in the policy schedule issued by it. The assessee collects the said amount from the owner (insured) of the insurance policy but it was acting only as a channel between proposed insured and the Government. The liability to contribute to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept in mind is the absence of a mechanism of making contribution to ERF; though under the Act, the assessee has collected the amount from the owner (insured), but in the absence of the fund being created, the assessee was handicapped in transferring the amount so collected to the fund. The manner of remittance was prescribed in December 2008 and the assessee has paid the accumulated balance on 2.9.2009. In the absence of the creation of fund, the assessee had no means of depositing the said amount and the assessee in such circumstances cannot be held responsible for nondepositing the contribution to ERF. In any case, we have already held in the above paras that the assessee was only the collector of funds of the amount which was to be deposited on behalf of the owner (insured), when the mechanism was provided for such deposit. 14. Before parting, we may also point out that there is no merit in the order of CIT(A) in holding the said payment to be in the nature of cess. The Ho ble Supreme Court in the case of M/s Guruswamy Co. Etc. (supra) has decided the said issue at para 21 of its judgment and has held that the word cess‟ means tax and generally used when the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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