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TMI Blog2015 (8) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... electricity duty payable to the Government and to that extent the order of the Commissioner of Income-tax (Appeals) is reversed and that of the Assessing Officer restores. With regard to electricity surcharge collected from the consumers, the same is levied in terms of Kerala State Electricity Surcharge (Levy and Collection) Act, 1989, which provides for levy and collection of surcharge on high tension and extra high tension supplies of energy by the Kerala State Electricity Board. The surcharge is collected from the special category of consumers in terms of section 3 of the above Act and stands on the same footing as under section 4(1) of the Kerala State Electricity Duty Act, 1963. Therefore, the provisions of section 43B is not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer under section 43B of the Income-tax Act to the tune of ₹ 77,53,80,000 being electricity duty payable under section 3(1) of the Electricity Duty Act, 1963 and ₹ 8,67,22,264 being supply surcharge payable to the Government. 3. The brief facts of the case are that the assessee has shown the following amounts payable to the Government as per the provisions of sections 3, 4 and 5A of the Kerala Electricity Duty Act, 1963 : 1. Electricity duty payable under section 3 ₹ 77,53,80,000 2. Electricity duty payable under section 4 ₹ 189,35,70,803 3. Electricity duty payable under section 5 ₹ 55,91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before us. 5. We have heard both the parties and perused the record. It was fairly conceded by the learned authorised representative that this issue was decided by the jurisdictional High Court in the assessee's own case reported in Kerala State Electricity Board v. Dy. CIT [2010] 329 ITR 91 (Ker) wherein it was held as follows : Section 43B(a) deals with 'any sum payable by the assessee by way of tax, duty. . . under any law for the time being in force'. The words, 'by way of tax' are indicative of the nature of liability. The liability to pay and the corresponding authority of the State to collect the tax (flowing from a statute) is essential in the realm of the rights of the sovereign, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer is justified to the extent of ₹ 77,53,80,000 towards electricity duty payable to the Government and to that extent the order of the Commissioner of Income-tax (Appeals) is reversed and that of the Assessing Officer restores. 7. With regard to electricity surcharge collected from the consumers amounting to ₹ 8,67,22,264, the same is levied in terms of Kerala State Electricity Surcharge (Levy and Collection) Act, 1989, which provides for levy and collection of surcharge on high tension and extra high tension supplies of energy by the Kerala State Electricity Board. The surcharge is collected from the special category of consumers in terms of section 3 of the above Act and stands on the same footing as under section 4(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excluded from its bodies like the Electricity Board. Though such express exclusion is absent in section 115JA, the Central Board of Direct Taxes issued Circular No. 762 dated February 18, 1998 excluding bodies like the Electricity Board from the operation of the section. Circular No. 762 not only is binding on the Department, but also explains the purpose in introducing section 115JA which was to tax zero-tax companies. The Central Board of Direct Taxes understood that companies engaged in the business of generation and distribution of electricity and enterprises engaged in developing, maintaining and operating infrastructure facilities, as a matter of policy, are not brought within the purview of section 115JA for the reason that such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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