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TMI Blog2019 (12) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... udicated 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 reproduced as under:- "1. The lower authorities ought to have followed the decisions of various benches of Hon'ble ITAT including the decision in 52 taxmann.com 268 and have held that steam in any form is power and the profit from the same is eligible for deduction vide section 80IA The lower authorities may be directed to compute the deduction vide section 80 IA accordingly after considering that AY 11/12 being the ionitial assessmenrt year as held by Ird CITA the brought forward losses whicch are already absorbed against other income are not to be deducted for computing the relief vide section 80IA ,the finding given on that aspect by learned CITA being correct 2. 3. 4. etc." 3. During the course of assessment proceedings, the assessing officer noticed that assessee has claimed deduction of Rs. 32,51,080/- u/s. 80IA (4) of the act for the first time on account of operation of captive power plant. The assessee has shown income from sale of power of Rs. 1,23,10,500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of NR Agrawal Industries of ITAT Ahmedabad. 5. During the course of appellate proceedings before us, ld. counsel has placed reliance on the decision on West Coast Paper Mills Pvt. Ltd. vs. CIT (2014) 52 taxman.com 268 (Mum-Trib) dated 30th May, 2014. He has further contended that in the case of M/s. NR Agrawal Industries Vs. DCIT, the issue of steam is power or not is not decided but set aside to the file assessing officer. On the other hand, ld. departmental representative has supported the order of assessing officer. 6. We have heard the rival contention and perused the material on record carefully. The ld. counsel has placed at page no. 108 of the Paper Book the order of the ITAT Ahmedabad in the case of M/s. N.R. Agarwal vs. DCIT vide MA No. 154 to 157 wherein as para 3 of the order the issue of deduction u/s. 80IA(4) on steam was restored to the file of the ld. CIT(A) for deciding the issue de-novo. With the assistance of Ld. representatives, we have gone through the decision of West Coast Paper Mills Pvt. Ltd. vs. CIT (2014) 52 taxman.com 268 (Mum-Trib). The relevant part of the decision from para 20 to 23 is reproduced as under:- "20. We have heard the rival content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of electricity alone, is too narrow a view. The term "power" encompasses a whole range of energy generated in various forms to run machines, devices, etc. This precise issue had also come up for consideration before the Tribunal in several cases cited supra. The Tribunal in Sial SBEC Bioenergy Ltd.'s case (supra), while deciding the issue whether generation of steam amounts to generation of power or not for the purpose of deduction under section 80-LA, has referred to a catena of decisions and also the dictionary meaning on the meaning and term of "power" and thereafter, observed and concluded as under : "The word 'power' used in section 80-IA(4)(iv) has not been defined in the statute, then the common parlance meaning as per the dictionary is normally taken into account. 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 benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of giving supply to its any premises or enabling a supplier to be so given. The Assessing Officer has tried to point out the intention of the Legislatures by referring to section 80-IA(4)(iv)(b) to infer that intention is to provide benefit to the generation of electricity only, since in the sub-clause (b) transmission and distribution lines are mentioned which can be of electricity only. Submission of the learned authorised representative in this regard to which we also agree remained that sub-clauses (a), (b) and (c) of section 80-IA(4)(iv) provide for deduction in the cases of three types of undertaking, viz. the one which is engaged in generation or generation and distribution of power ; second, which start transmission or distribution lines ; and the third, which undertakes substantial renovation and modernisation of the existing network of transmission or distribution lines. All these three clauses deal with the three different categories of the undertaking. These three types of undertakings referred to in the said sub-clauses (a), (b) and (c) are different and independent of each other. Thus while dealing (with) one sub-clause, inference need not and cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0- IA(4)(iv), held the Tribunal. Under these circumstances, we fully concur with the decision on the issue arrived at by the learned Commissioner of Income-tax (Appeals) that the assessee is in the business of generation of power and that the steam so generated by the industrial undertaking and receipt from the business of industrial undertaking is within the meaning of section 80-IA which would qualify for this benefit. The first appellate order is thus upheld. The ground is thus rejected." 23. From the aforesaid decisions, it can be inferred that the generation/ production of steam is also a form of power and the unit 6 which is an undertaking set-up for generation of steam for its manufacturing process can be said to be for generation of power. The basis on which the learned Commissioner (Appeals) has tried to distinguish the decision of Sial SBEC Bioenergy Ltd.'s case (supra) is very superficial. What needs to be seen is, whether generation of steam can be said to be generation of power I or not, then, the finding and the conclusion drawn by the Tribunal in the aforesaid decision after referring I to the catena of decisions and various other provisions clearly clinches t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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