TaxTMI 
TaxTMI 
2022 (9) TMI 306
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....61 Act') to the electricity duty collected by the assessee as per the provisions of Punjab Electricity (Duty) Act, 1958 (hereinafter referred to as '1958 Act'). Facts are being taken from ITA-33-2021. 2. Assessee is a licensee under the Electricity Act, 2003 engaged in the distribution of power in State of Haryana. Assessee filed return for the assessment year 2008-09 declaring nil income. Assessment under Section 143(3) was completed on 23.12.2010 at nil income. Commissioner Income Tax revised the same exercising power under Section 263 of the 1961 Act. Assessment order dated 30.01.2014 was passed under Section 143(3)/263 of the 1961 Act whereby certain deductions were disallowed and added back. 3. Aggrieved by the order,....
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....y him. 8. Thus, the question arises as to whether the amount towards electricity duty is payable by the assessee or it is merely a collection agency discharging its duty under a statutory arrangement. 9. In the year 1958, State legislature enacted the Punjab Electricity (Duty) Act, 1958. Section 2(b), (d), 3, 4, 5, 9 and 10 read as 3 of 11 under:- "2. Definitions.- In this Act, unless the context otherwise requires,- (b) "consumer" means a person, other than a licensee, who is supplied with energy- (i) by a licensee; or (ii) by the Board; 3. Electricity duty on energy supplied to consumer or licensees by Board, etc. [(1) There shall be levied and paid to the State Government on the....
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...., through a temporary connection or a temporary extension of an existing connection for the purpose of illumination on the occasion of a marriage or other religious or social function, at such rate not exceeding ten rupees per unit of the energy so supplied, as the State Government may, from time to time by notification, specify in this behalf, notwithstanding anything to the contrary contained in the preceding clause; and (v) where the energy is supplied to a licensee, twenty-five per cent on the price of energy so supplied in a month. Provided that on the supply of energy which is sold by a licensee not being a licensee specified in subclause (ii) or clause (d) of section 2, - (a) to a domestic consumer or a com....
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.... (3) Nothing in sub-sections (1) and (2) shall apply to the consumption or sale of energy which is- (a) [consumed by or sold to the Government of India for consumption by that Government; or] (b) consumed in the construction, maintenance or operation of any railway by the Government of India or a railway company operating that railway, or sold to that Government or any such railway company for consumption in the construction, maintenance or operation of any railway. (4) For the purpose of computing the electricity duty under this section the consumption shown by the meters starting after the first meter reading date falling after the commencement of this Act shall be taken into account. [Provided t....
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.... by a consumer to the Board or by the Board or a licensee or a person generating energy for his own use or consumption to the State Government, shall be recoverable as an arrears of land revenue or by deduction from amounts payable by the State Government to the Board or the licensee or such person. 10. Power to disconnect supply for nonpayment of duty.- Where a consumer or a licensee fails to pay the electricity duty to the Board or a consumer fails to pay such duty to a licensee who is authorised to recover the duty from the consumers under section 5, the Board or the licensee may exercise the power conferred on a licensee by subsection (1) of section 24 of the Indian Electricity Act, 1910, for the recovery of any charge or sum d....
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....s electricity duty leviable under 1958 Act is required to be deposited in the Government treasury by the licensee. 13. Section 43B is a non-obstente clause. It was inserted by Finance Act, 1983 with an intent to curb the malpractice at the hands of certain tax payers, who claimed statutory liability as a deduction without discharging the same and pleaded mercantile system of accounting as defence. 14. The argument raised by counsel for the appellant(s) that Section 43B will be attracted merely for the reason that the appellant(s) is following mercantile system of accounting deserves to be rejected. The revenue is required to show that the duty, tax, cess or fee (in the present case electricity duty) is payable by the assessee. The rel....