TMI Blog2008 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on the following substantial question of law: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that even though the fluid bed drier is an energy saving device, and is entitled 100 per cent. depreciation is valid in law ?" 2. The Revenue has reframed the question of law which are posed for our consideration and they are as follows: "1. Whether the Tribunal was right in holding that the fluid bed drier is entitled for 100 per cent. depreciation which does not find place in the restrictive definition of energy saving devices in the depreciation table appended to the Income-tax Rules? 2. When 'being' used to restrict the definition of 'energy saving devices' in the depreciation table appended to the Income-tax Rules, is the Tribunal right in holding that an item not enumerated in the restrictive definition is also entitled for depreciation under the said definition ?" 3. The assessee had claimed depreciation at 100 per cent. on fluid bed drier for the assessment year 1994-95. It was allowed. A notice under section 154 of the Income-tax Act, 1961 ("the Act" in short), was issued calling for the assessee's objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced. The Assessing Officer, as against a depreciation of Rs.11,55,970, allowed the claim to the extent of Rs.11,43,586. The Commissioner of Income-tax (Appeals) directed the Assessing Officer to indicate the working of the claim of depreciation. The appeal filed by the Revenue to the Tribunal was dismissed. In the typed set of papers, a working sheet is enclosed, under which 100 per cent. depreciation for fluid bed drier is shown in the calculation. None of the orders in the holding company's case indicate anything to show that fluid bed drier has been accepted as an energy saving device. Further, the reference in the assessment order in the present case is that the same stand was taken by the Revenue for the assessment year 1993-94 and it has been accepted. But that order is not before us. 8. The order in Asst. CIT v. Bijoy Nagar Tea Co. Ltd. [2002] 253 ITR (AT) 71 (Cal) has been produced. It is a short order, wherein while the Tribunal holds that it is not possible for them, "to go into the technicalities of finding the difference between a drier and a boiler", they were of the Opinion "that there is no reason why depreciation at the rate of 100 per cent. should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard. In M. P. Cement Manufacturers' Association v. State of M. P. [2004] 2 SCC 249, the Supreme Court held with regard to taxability of electricity, "Electricity being goods, shall also be subject to provisions of entry 84 of List I". In Vrajlal Manilal and Co. v. State of M. P. [1986] Supp SCC 201, we find the following words: "Held-Tendu leaves not being goods of specialised importance in inter-State trade or commerce under section 14(ix) of the Central Sales Tax Act, 1956, section 8(1) not violative of article 286(3) of the Constitution". In S. Rathinam v. L. S. Mariappan [2007] 6 SCC 724, it was held, "A will not being a mode of transfer, but a mode of devolution, the bar under the Transfer of Property Act, 1882, will not have any application. . .". In Gaya Prasad v. Surendra Bahadur Singh [1987] 2 SCC 383, it was held, "an agreement being not a transfer is not subject to restrictions of section 7 of the Transfer of Property Act". In India Cement Ltd. v. State of Tamil Nadu [1990] 1 SCC 12; [1991] 188 ITR 690 (SC); it was held, " . . . royalty being a levy or tax on the restricted material, . . . ". In Sudhindra Thirtha Swamiar v. Commissioner for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, smelt or refine moss. "Boiler" is a heating unit that heats water, whereas a furnace is a heating unit that heats air. Therefore, in both these equipments, heat is generated by the boiler or the furnace, as the case may be, whereas, as regards drier, the meaning is "an apparatus for removing moisture either by forced ventilation or heat". Therefore, for a drier, heat is not necessary; the drier may remove moisture otherwise than by application of heat, whereas for both the boiler and a furnace, heat generation is a must. The assessee also has produced some documents to support his case. One such document is a letter written by the assessee himself, according to which a furnace is a generic name for a heating place, and one form of furnace is a drier. He has also given the brochure issued by the company which has sold the fluidised bed drier. Of course, the literature in the brochure shows that "there is efficient transfer of heat to the solid matter" and the drying chamber and the plenum chamber have "double walled insulation to minimize losses" and it is stated, "Our driers are designed for maximum temperature of 83 degree centigrade. Consequently, air requirement and power re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed by illustrative instances. The Supreme Court in the case of Sait Rikhaji Furtarnal v. State of A. P. [1991] Supp 1 SCC 202 has observed that the expression "that is to say" is exhaustive and not illustrative. The meaning of the expression "peripheral equipment" is defined in the Illustrated Computer Dictionary (Donald D. Spencer-Third Edition) to mean input/output units and auxiliary storage units of a computer system, attached by cables to the central processing unit used to get data in the data out, and to act as a reservoir for large amounts of data that cannot be held in the central processing unit at one time. The word "terminal" means key board/display or key board/printer device used to input programs and data to the computer and to receive the output from the computer. 20. The Legislature having introduced the phrase "peripherals" under sub-entry (ii) of Part C of the Second Schedule to the Act, has defined the term by using the expression "that is to say". The definition must determine the application of the phrase. In our view, the context in which the expression "that is to say" is used in exhaustive and not illustrative. Therefore, since ATM's are not includ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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