TMI Blog2015 (1) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... e we do not find any error or illegality in the order of the CIT(A) qua the issue of deduction under section 80IA in respect of captive power plant as well as the valuation of power by applying the tariff charged by the state electricity Board. Accordingly, the ground No. 1 and 2 of the revenue’s appeal are dismissed. Deduction u/s 801A in respect of power generated from steam - whether steam is a by-product of the power generated and hence cannot be considered a power? - Held that:- As noted the decision of the Delhi Tribunal in Sial Sbec's case [2004 (3) TMI 342 - ITAT DELHI-C] and held that steam generated by the Industrial Undertaking comes within the meaning of power as per section 80IA, and would hence qualify for benefit. - Decided against revenue - I.T.A. No.2116/Mum/2013, 2115/Mum/2013 - - - Dated:- 30-1-2015 - Shri Sanjay Arora And Shri Vijay Pal Rao, JJ. Appellant by: Shri Manjunatha Swamy -CIT-DR Respondent by: Shri Bhavin Shah - AR ORDER PER BENCH :- These two appeals by the revenue are directed against two separate orders dated 13/12/2012 and 18.12.2012 respectively passed by the CIT(A) for the assessment year 2010-11. The revenue in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and held that the adjustment of 40% in the rate of electricity would be adopted to work out the profits which would be realized by the assessee through the operations of captive power plant. 2.1 On appeal the CIT(A) allowed the claim of the assessee regarding eligibility of deduction under section 80IA in respect of Captive Power Plant by following the decision of Settlement Commission for the assessment year 2009-10. CIT(A) has also accepted the claim of the assessee in applying the rate charged by the electricity Board in respect of electricity supplied to the assessee. 2.2 We have heard the ld.AR and the ld. DR and considered the relevant material on record. At the outset we note that an identical issue has been considered by the Ahmedabad Bench of this Tribunal in the case of sister concern of the assessee namely Deepak Nitrate Ltd. in ITA No.819 1447/Ahd./2010 for assessment year 2006-07 vide order dated 21.09.2012 para 41 to 44 as under :- 41. Before us, the Ld. D.R. submitted that the A.O. after considering various factors has rightly disallowed the claim of the assessee, he thus relied on the order of the A.O. 42. On the other hand, the Ld. A.R. submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of such an undertaking or an enterprise set up, any profit or gain is derived, falling under the sub-section covered by sub-section (4) of section 80- IA of the Income tax Act, such profit or gain derived by the assessee can be deducted in its entirety for a period of 10 years starting from the date of functioning of the set up. The contention that profit or gain can be claimed by the assessee only if such profit or gain is derived by the sale of its product or power generated to an outsider cannot be the manner in which the provisions contained in sec tion 80-IA(1) can be interpreted. The expression derived used in the said section 80- IA(1) in the beginning as well as in the last part of sub-section (4) makes it abundantly clear that such profit or gain could be obtained by one s own consumption of the outcome of any such undertaking or business enterprise as referred to in sub-section ( 4) of section 80-IA. The dictionary meaning of the expression derive in the New Oxford Dictionary of English states obtaining something from a specified source . In section 80-IA(1) also no restriction has been imposed as regards the deriving of profit or gain in order to state that such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue has gone in favor of the assessee upto the level of the Tribunal, it is in the absence of decisions of the High Courts or the Apex Court in the matter, the issue has not attained finality. We find that in several cases the Tribunal has held that steam is a form of power covered under the aforesaid beneficial provisions. The applicant has relied on the decisions of the Delhi Bench of the Tribunal in the case of Sial Sbec Bio Energy Limited vs DCIT [2004 TTJ 866 Delhi] and that of Jaipur Bench in the case of Maharaja Shree Umaid Mills Ltd. [2009 TTJ 791 Jai.]. In the former case, it was held as under: Assuming that the assessee uses electricity instead of steam and brings the same result, then what is wrong with the assessee when he uses the steam and brings the some results. The basic concept which one must understand is as to how the same end product has been brought- to the deployment of energy that is material and not, the form of energy be it a firm of mechanical, electrical or thermal energies and if the end results are brought through the thermal energy produced through steam, we feel that this is definitely a form of power which would be falling within the ambit of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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