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TMI Blog2019 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... o.6501/DEL/2014, dismissing the Revenue's appeal. In the present appeal, notice has been issued only on one question - pertaining to the disallowance of additional depreciation claimed by the respondent/assessee for Assessment Year 2011-2012. 2. The assessee is a joint venture company of two public sector undertakings and is engaged in the production of thermal power. For the assessment year in question, it declared 'nil' income after setting off the current year's profits with brought forward unabsorbed depreciation. During the course of assessment proceedings, the Assessing Officer (AO) raised a query regarding the assessee's claim for "additional depreciation", under Section 32(1)(iia) of the Act contending that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d aircraft), which has been acquired and installed after the 31st day of March, 2005, by an assessee engaged in the business of manufacture or production of any article or thing, a further sum equal to twenty per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii)." 7. Learned counsel for the assessee has drawn our attention to the judgment of the Karnataka High Court dated 16.09.2014 in ITA No.08/2014 [Commissioner of Income Tax vs. The Hutti Gold Mines Co. Ltd.] wherein the question of additional depreciation was considered and it was held as follows: "3. The material on record shows that the assessee is generating electricity through windmill as a second line of business. It is a product o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "20. Before we deal with the constitutional aspects let us first state what electricity is, as understood in law, and what are its relevant characteristics. It is settled with the pronouncement of this Court in Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur - 1969(2) SCR 939 that electricity is goods. The definition of goods as given in Article 366 (12) of the Constitution was considered by this Court and it was held that the definition in terms is very wide according to which "goods" means all kinds of moveable property. The term "moveable property" when considered with reference to "goods" as defined for the purpose of sales-tax cannot be taken in a narrow sense and merely because electrica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be denied. 10. As held by the Constitution Bench, electricity is capable of abstraction, transmission, transfer, delivery, possession, consumption and use like any other movable property. Following the same logic, to deny the benefit of additional depreciation to a generating entity on the basis that electricity is not an "article" or "thing" is in our view an artificially restrictive meaning of the provision. The benefit of additional depreciation under Section 32(1)(iia) has, therefore, been rightly granted to the assessee by the concurrent judgments of the CIT(A) and the Tribunal. 11. We also note that, w.e.f. from 01.04.2013, the provision has been amended by the Finance Act, 2012 and assessees engaged in the generation of power have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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