Income Tax Appellate Tribunal Delhi Dakshin Haryana Bijli Vitran Nigam ... vs Department Of Income Tax ITA NO. 1388/Del/2011 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "B", NEW DELHI BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. No. 1388/Del/2011 A.Y. : 200708 Asstt. Commissioner of Income Tax, vs. Dakshin Haryana Bijli Vitran Hisar Nigam Ltd,., Delhi Road, Hisar (PAN/GIR NO. : AABCD0033C) (Appellant ) (Respondent ) Assessee by : Sh. K. Sampath/ V. Raja Kumar, Advocates Department by : Sh. S. Krishna, CIT(DR) ORDER PER U.B.S. BEDI : JM This appeal by the Revenue is directed against the order passed by Ld. Commissioner of Income Tax (Appeals), Rohtak dated 03.1.2011, relevant to assessment year 200708, wherein following three effective grounds being raised. i) The Ld. CIT(A) has erred in deleting the addition of ` 89.66 crores made by the AO on account of non realization of 'Provision for surcharge'. ii) The Ld. CIT(A) has erred in deleting the disallowance made u/s. 40(a)(ia) of the IT Act, 1961 at ` 152.53 crores. 1 ITA NO. 1388/Del/2011 iii) Whether on the facts and circumstances of the case the Ld. CIT(A) (wrongly mentioned as ITAT in the ground) was justified in law in holding that the payments made by the assessee in form of transmission / wheelings / SLDC charges were not liable to be deducted at source either u/s. 194J or u/s. 194C of the Income Tax Act, 1961. 2. The assessee company is a Govt. undertaking carrying out the business of distribution of electricity in ten districts of southern Haryana. The AO made additions on two accounts: i) Provision made on account of surcharge levied but not realized amounting to ` 89.66 Crs. ii) Disallowance u/s. 40(a)(ia) on account of non deduction of tax on the payment of wheeling / transmission charges of ` 152,53,40,469/ to M/s HVPN Ltd. 3. Assessee took the matter before the First Appellate Authority raising two effective grounds. First ground related to addition of ` 89.66 Crs on account of provision of surcharge levied but not realized. During the appeal proceedings the A.R. submitted that relief has been granted by CIT(A) for the A.Y. 200607 in the case of the assessee in appeal no. 387/HSR/0809 dated 6.11.2009 on the same issue and therefore relief may be granted in the year under appeal. Ld. CIT(A) observed from the order of the CIT(A) for the A.Y. 200607 that the issue has been considered elaborately and relief granted. So, following the same the impugned addition made by the AO came to be deleted and allowed the first ground of appeal. 2 ITA NO. 1388/Del/2011 4. Aggrieved by this order of the Ld. CIT(A) on first ground, the Department has come up in appeal and Ld. Counsel for the assessee at the very outset, submitted that the Ld. CIT(A) has followed the order of his predecessor in assessee's own case for A.Y. 200607, which order has since been upheld by the ITAT, Delhi, 'B' Bench in ITA No. 250/Del/2010 dated 30.11.2011 for A.Y. 200607. So by filing the copy of the said order, ld. Counsel for the assessee submitted that since issue raised in this appeal is squarely covered in favour of the assessee by earlier decision of the Tribunal for the A.Y. 200607 which has been followed in A.Y. 200809. It was pleaded for confirmation of the impugned addition. 5. Ld. Departmental Representative could not controvert this factual aspect and relied upon the order of AO to plead for reversal of the order of the Ld. CIT(A). 6. We have heard both the sides and considered the material on record as well as precedents relied upon by the Ld. A.R. of the assessee. In assessee's own case for the assessment years 200607 & 200809, wherein simi