TMI Blog2015 (5) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... d for deduction u/s 80IA of the Act. - Decided in favour of assessee - I.T.A.No.2058/Mds/2013 - - - Dated:- 29-5-2015 - SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER] For the Appellant : Shri A.V.Sreekanth, JCIT For the Respondent : Shri V. Ravichandran, CA O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER This appeal of the Revenue is directed against the order of the Commissioner of Income-tax (Appeals-V), Chennai, dated 28.8.2013 and pertains to assessment year 2009-10. 2. The only issue arises for consideration is deduction claimed by the assessee u/s 80IA of the Act. 3. Shri A.V.Sreekanth, ld. Departmental Representative submitted that the assessee-company claimed deduction u/s 80IA to the extent of ` 1,74,88,012/-. According to the ld. DR, the assessee has no agreement with Tamil Nadu Electricity Board for sale of electricity. However, the assessee produced a copy of the licence agreement executed between one M/s Kanishk Steel Industries Ltd. and the assessee. As per this licence agreement, the assessee was authorized to operate the power generating unit owned by M/s Kanishk Steel Industries Ltd. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the steel mill. It is not the business of M/s Kanishk Steel Industries Ltd to generate electrical energy. The assessee s main business is generation of electrical energy. The assessee approached M/s Kanishk Steel Industries Ltd. with the proposal to install a waste heat recovery plant in the premises owned by M/s Kanishk Steel Industries Ltd. with the intention to utilize the waste heat to generate electrical energy. M/s Kanishk Steel Industries Ltd. expressed its willingness to provide waste heat for the purpose of generation of electrical energy and the assessee entered into an agreement for the purpose of generating electrical energy from the waste heat generated by M/s Kanishk Steel Industries Ltd. As per the agreement, the assessee has to deposit an interest free deposit to M/s Kanishk Steel Industries Ltd. of the amount equal to 10% of the total value of the plant and equipment. As per the original agreement, the assessee was given the right to operate the plant and generate power for 15 years. The assessee was also given an option to renew the licence for another period of 15 years. According to the ld. Representative, the life of the plant is only 30 years. The entire 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered in a writ proceeding, according to the ld. Representative, the findings of the Madras High Court is equally applicable to the assessee s case. 6. We have considered the rival submissions on either side and also perused the material available on record. The assessee-company is admittedly engaged in generation and distribution of power. The assessee entered into an agreement on 26.4.2008 with M/s Kanishk Steel Industries Ltd. to install a waste heat recovery plant in the premises owned by M/s Kanishk Steel Industries Ltd. M/s Kanishk Steel Industries Ltd. own the entire plant and equipment as per the specification and the plant was in fact installed at Periyaobulapuram, OPG Nagar, Gummidipoondi, Thiruvallur District. The assessee was granted a licence and permit to use plant and equipment for the purpose of generating electricity. It is not in dispute that though the plant was owned by M/s Kanishk Steel Industries Ltd, the assessee was given the right to operate and generate electricity. The question arises for consideration is when the assessee is not owner of the plant and equipment and with licence from M/s Kanishk Steel Industries Ltd. it generates power, whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) says nothing about lease of the undertaking. As already pointed out by the learned counsel appearing for the petitioner, the Section itself being very clear that the qualification for deduction is available to an undertaking engaged in the generation or generation and distribution of power, in the absence of any-of the disqualification as given under sub section (3) present here, the petitioner cannot be denied of the relief. 20. I agree with the submission made by the learned counsel appearing for the petitioner that in contradistinction to subclause (v) to sub-section (4) of Section 80IA, there is no qualification to be read into the term undertaking so as to be restrictive of an assessee to be a owner alone to claim the benefit under Section 80IA. Contrary to the assertion of the learned standing counsel appearing for the Revenue, I do not find anything in sub-section (3) of Section 80IA, which would go against the claim of the assessee herein; that the mere fact that the assessee is a lessee, per se, does not result in any disqualification to reject the deduction claim falling under Section 80IA. The facts herein are that the windmill was already in use by the lessor, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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