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TMI Blog2019 (9) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... ib) and he had accepted the claim without applying his mind. Hence, the order of the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, as it involves huge amount of tax - PCIT is justified in invoking the provisions of section 263. - Decided against assessee. - I.T.A. No.462/Coch/2018 - - - Dated:- 26-9-2019 - S/SHRI CHANDRA POOJARI, AM AND GEORGE GEORGE K., JM For the Assessee : Shri Pankajakshan, CA For the Revenue : Shri Shantam Bose, CIT(DR) ORDER Per CHANDRA POOJARI, AM: This appeal by the assessee is directed against the order of the Pr.CIT, Trivandrum dated 07/08/2018 passed u/s. 263 of the I.T. Act and pertains to the assessment year 2014-15 2. The assessee has raised the following concise grounds of appeal: 1. The Pr. CIT has erred in law in setting aside the assessment order passed u/s. 143(3) of the Act dated 26/12/2016 for the AY 2014-15 with a direction to redo the assessment considering the applicability of provisions of Sec. 40(a)(iib) of the Act for disallowance of Electricity Duty paid/payable amounting to ₹ 43,87,44,000/-. The Pr. CIT ought to have noted that such order was pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ii) PCIT vs. Ballarpur Industries Limited (Bombay High Court) judgment delivered on October 13, 2016. iii) Antala Sanjaykumar Ravjibhai vs. CIT (2012) 135 ITD 506 (Rajkot Trib.) iv) Manish Kumar vs. CIT (2012) 134 ITD 27 (Indore Trib.) v) Amira Pure Foods Pvt. Ltd. vs. Pr.CIT (ITAT Delhi) (order dated 29th November, 2017) 3. The facts of the case are that assessee filed its return of income on 30/11/2014 declaring a loss of ₹ 4,44,61,46,376/- as assessment u/s. 143(3) was completed on 26/12/2018 reducing the lossto ₹ 2,70,45,38,292/-. However, on examination of the records, the Pr. CIT noticed that an amount of ₹ 43,87,44,000/- was debited in the Profit and Loss account towards Electricity duty u/s. 3(1) of the KSED Act which stipulated that the assessee is liable to pay 6 naya paisa per unit on the energy sold at a price of more than 12 naya paisa per unit, provided no duty shall be payable by the assessee on the energy sold by it to another licensee. Further, according to the Pr. CIT, section 3(iii) states that the duty on the sale of energy should be borne by the licensee and shall not be passed on to the consumer. The Pr. CIT held that the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round alone, the duty under Section 3(1) of the Electricity duty Act, 1963 is not hit by section 40(a)(iib) of the Act. 4.2 Further, it was submitted that the word appropriated is not defined in the Income Tax Act, 1961. The Cambridge advanced learners dictionary meaning of the term is the act of taking something for your own use without permission and meaning as per Cambridge academic content dictionary is the amount of money kept separate to be used for a particular purpose . According to Macmillan dictionary the meaning of the term appropriation is to take something away from someone . According to the Ld. AR, while presenting Union Budget an appropriation bill to the proposed law is presented that authorises the expenditure out of government funds and the bill authorises withdrawal of funds out of consolidated fund of Govt of India to meet expenditure provided for in the budget. From the above discussion, it was submitted that the term appropriation is synonymous with taking funds out of an account of one entity whether it is governmental or private. Therefore, it was submitted that duty imposed under Section 3(1) of the electricity duty Act 1963 which is levied or col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iament correctly and exactly and not loosely and inexactly. iii) In the case of C1T vs. Sodradevi (1957) (32 ITR 615) (SC), it was held by the Apex Court that unless there is an ambiguity, it would not be open to the Court to depart from the normal rule of construction which is that the intention of the legislature should be primarily to gather from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and considered on surrounding circumstances and constitutionally proposed practices.. It was, therefore, prayed that the grounds raised in the appeal may be allowed in favour of the assessee. 5. The Ld. DR relied on the order of the CIT. 6. We have heard the rival submissions and perused the record and also gone through all the case laws cited by the parties. Section 263 of the Income-tax Act seeks to remove the prejudice caused to the revenue by the erroneous order passed by the Assessing Officer. It empowers the Commissioner to initiate suo moto proceedings either where the Assessing Officer takes a wrong decision without considering the materials available on record or he takes a decision without making an enquiry i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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