TMI Blog2015 (10) TMI 1899X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of assessee. - ITA No. 944/Mum/2012 - - - Dated:- 9-10-2015 - Shailendra Kumar Yadav, JM And Ashwani Taneja, AM For the Petitioner : Shri Chandra Vijay, DR For the Respondent : Ms I A Singh, AR ORDER Per Ashwani Taneja, AM. This appeal has been filed by the Revenue against the order of learned Commissioner of Income-Tax (Appeals)-21, Mumbai, dated 03.11.2011 for A.Y. 2007-08 passed against the assessment order u/s.143(3) dated 24.12.2009. 2. Following grounds are raised by the Revenue in the appeal memo: (i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating the facts of the case with respect to section 80I which was introduced by the Finance (No.2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods for the purpose of sale of goods Act. 3. The Revenue has also filed one additional ground of appeal, as under: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the depreciation to assessee particularly in view of the fact that the generation of power has been added in section 32(1)(iia) only after 1/4/2013. Therefore, even if for the sake of argument it is accepted that assessee is engaged in the business of generation of power even then assessee is not entitled for additional depreciation prior to 1/4/2013. 4. It is noted by us that the additional ground raised by the Revenue is purely legal ground and does not require any investigation of fresh facts. Ld. Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of depreciation of ₹ 1,54,80,000/-, being additional depreciation on the wind mill. On the other hand, learned Authorized Representative has vehemently supported the order of ld. CIT(A). In addition to that she has placed reliance upon the order of Assessing Officer in assessee's own case for A.Y. 2006-07 wherein Assessing Officer after making detailed discussion in the assessment order, has allowed the claim of additional depreciation made by the assessee. Copy of assessment order has been placed before us. Further, in support of her claim, she has placed reliance on the judgment of Hon'ble Chennai Bench in case of ACIT vs. M. Satishkumar [2013] 33 taxmann.com 396 (Chennai - Trib.). 8. We have considered the submissions ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or indirectly. He, therefore, disallowed assessee's claim of additional depreciation amounting to ₹ 1,54,80,000/ - claimed u/s 32(1)(iia) of the Act. 8.1. During appellate proceedings before the Ld CIT(A), the assessee explained that it had generated electricity by harnessing wind energy and earned income from sale of the electricity so generated, in the states of Maharashtra and Rajasthan. The electricity generated was measured and traded in units known as 'kilowatts'. The electricity is an actively traded good, and there was even an exchange specifically for this purpose. As regards the contention of A.O. that electricity was not an article or thing the assessee relied upon following decisions, to show that this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant is an article or thing which can be traded, which can be measured and which can be stored and also it can be exchanged. In the case of Southern Petrochemical Industries Co. Ltd., the Supreme Court held that the electricity has to be considered as (goods) for the purpose of application of Sales Tax Laws. In the case ofState of A.P. vs National Thermal Power Corporation Ltd. (2002) 5 SCC 203 , M. P. Cement Manufacturers Association vs. State of Madhya Pradesh (2004) 2 SCC 249 referred to in Tata Consultancy Services vs. State of A.P. (2004) 271 ITR 401 , it was held that the electricity was capable of abstraction, consumption and use which, if done dishonestly was punishable u/s 39 of the Indian Electricity Act, 1910. It was held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of A.P. (2004) 271 ITR 401 , that the electricity was capable of abstraction, consumption and use which, if done dishonestly was punishable u/s. 39 of the Indian Electricity Act, 1910. It was held that electric energy could be transmitted, transferred, delivered, stored and possessed, etc. in the same way as any other movable property. It was held that electricity was thus goods within the meaning of Sales Tax Act. 4. From the above judgement of the Hon'ble Supreme Court, electricity is an 'article or thing' for the purpose of sales tax. The same definition if applied to Income Tax makes the assessee eligible for its claim of depreciation u/s. 32(1)(iia). 5. The submissions and arguments of the assessee were duly c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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