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TMI Blog2008 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition 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 objection for withdrawal of the 100 per cent. depreciation. The assessee objected to the disallowance. The objections were rejected as untenable since the Revenue took the stand that a fluid bed drier is not enumerated as an energy saving device in the old Appendix I which is applicable for the assessment year period from 1988-89 to 2002-03. Even earlier, the Revenue took the same stand for the assessment year 1993-94. Those orders were confirmed in appeal. But, the appeal filed against the assessment order in this case was allowed by the Commissioner of Income-tax (Appeals), relying on Asst. CIT v. Bijoy Nagar Tea Co. Ltd. [2002] 253 ITR (AT) 71 (Cal) (the Income-tax Appellate Tribunal, Calcutta B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be given to fluid bed type drier also". The conclusion is not satisfactory. 9. Initially, an objection was raised that the appeal itself is not competent since there is a circular of the CBDT prescribing monetary limit for filing an appeal and since the tax effect in the present case was negligible and no substantial questions of law arose for consideration and, therefore, the appeal itself deserves to be dismissed. Learned senior standing counsel appearing on behalf of the Revenue submitted that those circulars will not bind this court if this court decides to hear the matter for determining the question of law. We are not inclined to take note of this technical objection in this case. 10. Several judgments were cited to show how the words used s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hindu Religious and Charitable endowments, AIR 1963 SC 966, it was held, ". . . a fee being a levy in consideration of rendering a service of a particular type....Excise duty being a levy on the manufacture or production of goods could ordinarily have been collected at that stage itself . . ." State of Kerala v. Madras Rubber Factory Ltd. [1998] 1 SCC 616. In Union of India v. Mustafa and Najibai Trading Co. [1998] 6 SCC 79, it was held, ". . . confiscation of goods under section 111 of the Customs Act being a penalty in rem...". 14. Let us see what can be used in the above extracts to substitute the word "being". For example, in the sentence, "excise duty being a levy on the manufacture or production of the goods" can be read to mean, "excise duty which is a levy on the manufacture or production of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requirement are low". These cannot conclude the issue, since the information is not sufficient. But, even if the brochure clearly indicated the fluidised drier's energy efficiency, we doubt, if we can include what the law makers have chosen not to include. 17. In P. Ramanatha Aiyar's Advanced Law Lexicon, III Edition, 2005, the words "being a trader" is translated as "carrying on trade"; "being part ners" as one "who have had relationship of partners" ; and "being the property of the assessee" means "the assessee owns the property". Of course, this does not help us, but "being a trader" could be expressed in other words as "one who is a trader". Similarly, "being partners' may mean 'who are partners' and 'being the property of the assessee' may mean 'which is the property of the assessee'. Therefore, in this case, the only wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 included under sub-entry 20(ii) (b) of Part C of the Second Schedule to the Act, by construction, it cannot be brought under that entry. 21. The table of depreciation states that the energy-saving devices for which 100 per cent. depreciation is allowed are the equipment named therein, i.e., "the energy devices" which are "fluidised bed boilers, furnaces". 22. The Supreme Court has held that if a provision is made in the context of a law providing for concessional rates of tax for the purpose of encouraging an industrial activity, a liberal construction should be put upon the language of the statute-vide CIT v. Straw Board Manufacturing Co. Ltd. [1989] Supp 2 SCC 523. 23. The items in an exemption notification are to be strictly construed, but once the goods in question fall even narrowly in one of the exempted categories, then the exemption notification has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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