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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
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 Rs.43,87,44,000/-. The Pr. CIT ought to have noted that such order was passed without satisfying the twin conditions stipulated in sec. 263 of the Act that the assessment order should be erroneous as well as prejudicial to the interest of Revenue as has been held by the Supreme Court in the case of Malabar
Industrial Co. (243 ITR 83). The Pr. CIT ought to have noted that there was no error in the assessment order passed u/s. 143(3) of the Act in as much as that the Electricity Duty levied u/s. 3(1) of the Kerala State Electricity Duty Act 1963 (KSED Act) on the appellant was not an exclusive levy but was applicable to all the licencees for distribution of power in the State of Kerala as per the definition of the term Licensee in section 2(d) of the KSED Act.
2. Notwithstanding the above claim and without prejudice to the above submissions, on merits of the case also, the action of the Pr. CIT in setting aside the assessment and re-doing the same is no sustainable in law going by the provisions of sec. 40(a)(iib) of the I.T. act since ‘Duty’ under KSED Act is not an exclusive levy on the appellant considering the provisions of section 3(1) of the KSED Act and the definition of the term ‘Licensee’ in sec. 2(d) of the KSED Act. As per sec. 2(d) of the said Act all persons who have been given a licence for distribution of power in the State of Kerala are Licencees and as per the facts of the case, there are ten licencees in the State of Kerala as could be noted from the information downloaded from the website of Kerala State Electricity Regulatory Commission (KSERC). Of the ten licencees, two of them, i.e., your appellant and KINESCO Power & Utility Pvt. Ltd. are State Public Sector Undertakings (State PSU) as defined in Explanation to Clause B of section 40(a)(iib) of the Income-tax Act, 1961. Therefore, finding of the Pr. CT that the appellant is the only State PSU is also factually erroneous and needs to be set aside/struck down being not sustainable in law.
3. The Pr. CIT has erred in law in directing the assessing officer to make a disallowance of the Electricity Duty as per sec. 3(1) of the KSED Act amounting to Rs.43,87,44,000/- while setting aside the assessment, which is not in accordance with the provisions of sec. 263 of the I.T. Act as per the legal decisions of various Hon’ble High Courts and ITATs as given below:
1) CIT vs. J.L. Morrison (India) Ltd. (Calcutta High Court) Judgment delivered on June 18, 2014. 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)
The facts of the case are that assessee filed its return of income on 30/11/2014 declaring a loss of Rs.4,44,61,46,376/- as assessment u/s. 143(3) was completed on 26/12/2018 reducing the lossto Rs.2,70,45,38,292/-. However, on examination of the records, the Pr. CIT noticed that an amount of Rs.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 amount debited towards Electricity Duty u/s. 3(1) of the KSED Act being an exclusive levy on the assessee which is a State Government undertaking by the State Government is to be disallowed u/s. 40(a)(iib) of the Act. Accordingly, the Pr.
CIT set aside the assessment order dated 26/12/2016 as it was erroneous and prejudicial to the interests of the Revenue by invoking the provisions of section 263 of the Act. For this proposition, the Pr. CIT relied on the following judgments:
1) CIT vs. Jawahar Bhattacharjee (2012) 34 ITR 434 (Gau.) (FB). 2) CIT vs. Emery Stone Manufacturing Co. (1995) 213 ITR 843 (Raj.). 3) Malabar Industrial Co. Ltd. vs. CIT (2000) (243 ITR 83).
Against this, the assessee is in appeal before us. The Ld AR submitted that provisions of first limb of Section 40a(iib) of the IT Act 1961 is not applicable to the assessee since Electricity duty under Section 3(1) of the Kerala State Electricity Duty Act 1963 is applicable to all 10 licensees set up and operating in the state of Kerala 3
by the private, state, central and bodies/authorities. It was submitted that levy is not therefore an exclusive levy as provided in the section. The Ld. AR submitted that levy of duty /taxes on consumption or sale of electricity is provided for in Entry no 53 list H (state list seventh schedule) of the constitution of India and hence, duty levied by the Kerala State Electricity Duty Act 1963 is not any fee or charge as provided in Section 40a(iib) of the IT Act 1961.
4.1 Moreover, it was submitted that the same being duty has been stated to be outside the purview of the above section as per Education guide published by the IT department for the benefit and understanding of the assessees. (relevant pages of the education guide attached as page no 4 to 7 of Argument Note No 4 filed on 30th day July 2019). On this account both limbs of Section 40a(iib) of the Act is not applicable to the duty in question. Regarding question as to why such duty is not governed by the second limb of section 40a(iib), it provides as under :
"Appropriated directly or indirectly from a state government undertaking by the state government "
It was submitted that it was clarified by the Income tax department in the Education guide for the benefit and understanding of the assessees, duty or taxes are not covered by Section 40a(iib) of the It act 1961, therefore on this ground 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 "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 collected from all licensees public and private can never come within the purview of the term "appropriated".
4.3 The Ld. AR submitted that the section clearly provides that such appropriation is from a state Government undertaking by the state Government. There is a lot of significance or emphasis on the term used "a state Govt undertaking". It is definitely intentional and not accidental. It definitely is meant to cover charges other than taxes or duty levied from a state PSU by the state Government. It was submitted that in both the limbs of the Section use of words from a state government undertaking by the state government" is clearly conclusive of the intent, reach and ambit of section 40a(iib) of Act. According to the Ld. AR, the law of literal interpretation of statutes clearly provides that where the provisions of the section are clear and express, there is no need to look beyond the express provisions of the statute. It is definitely so in this case. The Ld. AR relied on the following leading cases on the literal interpretation of statutes in support of the above submission:
According to Viscount Haldane, L.C., if the language used has a natural meaning we cannot depart from that meaning unless, reading the statute as a whole, the context directs us to do so. According to the plain meaning rule, absent a contrary definition within the statute, words must be given their plain, ordinary and literal meaning. If the words are clear, they must be applied, even though the intention of the legislator" may have been different or the result is harsh or undesirable. The literal rule is what the law says instead of what the law means.
The landmark rulings /decisions on interpretation which stand to the support of the above are given below.
(i) A literal construction would not be denied only because the consequences to comply with the same may lead to a penalty. The courts should not be over zealous in searching for ambiguities or obscurities in words which are plain. (Tata Consultancy Services V. State of A.P. (2005) 1 SCC 308).
(ii) Another important point regarding the rule of literal construction is that exact meaning is preferred to loose meaning in an Act of Parliament. In the case of Pritipal Singh V. Union of India (AIR 1982 SC 1413, P. 1419(1982)), it was held that there is 'a presumption that the words are used in an Act of Parliament 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.
The Ld. DR relied on the order of the CIT.
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 into the matters, where such inquiry was prima facie warranted. The Commissioner is well within his powers to treat an order as erroneous on the ground that the Assessing Officer should have made further inquiries before accepting the wrong claims made by the assessee. The Assessing Officer cannot remain passive in the face of a claim, which calls for further enquiry to know the genuineness of it. In other words, he must carry out investigation where the facts of the case so require and also decide the matter judiciously on the basis of materials collected by him as also those produced by the assessee before him. The Assessing Officer was statutorily required to make the assessment under Section 143(3) after scrutiny and not in a summary manner as contemplated by Sub-section (1) of Section 143. The Assessing Officer is therefore, required to act fairly while accepting or rejecting the claim of the assessee in cases of scrutiny assessments.
The Assessing Officer should protect the interests of the revenue and to see that no one dodged the revenue and escaped without paying the legitimate tax. The Assessing Officer is not expected to put blinkers on his eyes and mechanically accept what the assessee claims before him. It is his duty to ascertain the truth of the facts stated and the genuineness of the claims made in the return. The order passed by the Assessing Officer becomes erroneous when an enquiry has not been made before accepting the genuineness of the claim which resulted in loss of revenue.
6.1 In the present case, the Assessing Officer had not made the disallowance u/s. 40(a)(iib) of the Act. Without enquiring, the Assessing Officer accepted the assessee’s claim. The failure on the part of the Assessing Officer to make necessary enquiry rendered the assessment order erroneous which also resulted in loss to the revenue. The PCIT had observed in his order that the electricity duty u/s. 3(1) of the KSED Act falls under the purview of section 40(a)(iib) of the Act and it is to be disallowed u/s. 40(a)(iib) of the Act. Hence, the order of the PCIT cannot be held as erroneous. The PCIT’s approach was correct. Therefore, the PCIT exercised his power conferred u/s. 263 of the Act in setting aside the assessment. In our opinion, the Assessing Officer has not considered the issue relating to the application of section 40(a)(iib) of the Act 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. Similar view was taken by us in the case of Kerala State Beverages Corporation in dated 12/03/2019. In our 8
PCIT is justified in invoking the provisions of section 263 of the Act. The judgment relied on by the Ld. AR is not relevant to the facts of the case. Accordingly, all the grounds of appeal of the assessee are dismissed.