TMI Blog2019 (12) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member For the Appellant : Shri Vinod Tanwani, Sr. D . R. For the Respondent : Shri Nimesh Vayawala, A . R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- This cross objection for A.Y. 2011-12 arises out of order of the ITAT, Ahmedabad vide ITA No. 305/Ahd/2015 others order dated 26-03-2019. 2. The fact in brief is that the appeal of the revenue vide ITA No. 305/Ahd/2015 pertaining to assessment year 2011-12 was adjudicated by the ITAT on 26th March, 2019 and at para 21 of the order, it is stated that assessee has not pressed its cross objection vide CO No. 41/Ahd/2015 pertaining to assessment year 2011-12, therefore, the same stands dismissed. Subsequently, the assessee filed Miscellaneous Application vide no. 185/ahd2019 stating the finding of the ITAT that cross objection was not pressed was a mistake and contended that C.O. should be adjudicated on merit. The Miscellaneous Application was allowed vide order dated 07/08/2019 to adjudicate the above referred cross objection on merit. The grounds of cross objection filed by the assessee is reproduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay Electronic Supply Industrial Company Ltd. vs. CIT (1978) 1133 ITR 84 wherein it is held that expression attributable was used when the legislature intended to cover the receipt from sources other than the actual conduct of the business. The assessing officer has also stated that in this case the sale of steam would have been liable as deduction u/s. 80IA(4) if the legislature has used the word profit attributable to instead to derived from the industrial undertaking. The assessing officer has stated that the Apex Court in the case of CIT vs. Sterling Foods (1999) 237 ITR 579 has held that only such business profit that have direct nexus to the essential business activity of the assessee can qualify for deduction. Consequently, the assessing officer has disallowed the deduction of ₹ 32,51,080/- u/s. 80IA(4) of the act and added to the total income of the assessee. 4. Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee on this issue after referring the decision of NR Agrawal Industries of ITAT Ahmedabad. 5. During the course of appellate proceedings before us, ld. counsel has placed reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding on 31st day of March 2006. 21. Thus, the statute contemplates generation of power or generation and distribution of power . The moot question before us is, whether the steam generated by the assessee, which rotates the turbine for running of machines used for its manufacturing process and also steam alone, is a form of power or not. The case of the learned Commissioner (Appeals) is that the meaning of power as contemplated in the statute is generation of electricity alone, whereas the case of learned counsel before us is that the power is a form of energy which can be electrical, mechanical, thermal or any other form of energy. The Income-tax Act, 1961, does not define the word power . The New Oxford Dictionary of English defines the word power as energy that is produced by mechanical, electrical or other means which is used for operating device. Otherwise also, generation of steam is a kind of energy which can be converted into mechanical or electrical energy from which power is generated. To say that the generation of power is only restricted to generation of electricity alone, is too narrow a view. The term power encompasses a whole range of energy ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also a form of power which is eligible for relief under section 80- IA(4). The relevant observation and the conclusion drawn by the Tribunal is reproduced below: 5. Considering the above submissions, we find substance in the arguments of the learned authorised representative that like electricity, steam is also a form of power as per the dictionary meaning reproduced by the learned Commissioner of Income-tax (Appeals) at pp. 5 and 5 (sic) of the first appellate order. We also concur with the view of the learned authorised representative that there is little room for any doubt that scientifically or in general parlance, 'production of steam' 'generation of steam1: or for that matter, 'production of electricity' and 'generation of electricity', shall have the same meaning whichever of the two be the item under consideration. In this regard the learned authorised representative has also referred to the definition of word 'generate' under section 2(29) of the Electricity Act, 2003 as per which 'generate' means to produce electricity from a generating station for the purpose of giving supply to its any premises or enabling a sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rise or pass off in steam or vapour, or smell; to become dimmed with condensed vapour (often with up); to move by means of steam. As per the Cambridge International Dictionary of English, the steam is the hot gas that is produced when water boils ; steam can be used to provide power, steam turbines of a steam engine/locomotive of the age of steam. Thus there is no doubt, like electricity, steam is also a form of power. The arguments advanced on behalf of the assessee also find support from the decision of the Delhi Bench of the Tribunal in the case ofSial SBEC Bioenergy Ltd. v. Dy. CIT [2004] 83 TTJ (Del) 866 on an identical issue wherein dealing with the matter in detail, it has been held that the word 'power' has to be given a meaning which is in common parlance and in common parlance the word 'power' shall mean the energy only. The energy can be of any form, be it mechanical, be it electrical, be it wind or be it thermal. The steam produced by the assessee on the principle of interpretation of statute shall only be termed as power and shall qualify for the benefits available under section 80- IA(4)(iv), held the Tribunal. Under these circumstances, we fully co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
