9911796707
TMI Blog2022 (9) TMI 1662X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer by disallowing investment allowance u/s 32AC of the Act without recognizing that the investment allowance u/s is available only to the assessee engaged in the business of manufacture or production of article or thing only, and not allowable to business of generation, transmission or distribution of power. (ii) Whether the CIT(A) has erred in considering similar issues in the instant case and the cases on which CIT(A) has relied without recognizing that the referred cases are related to claim of additional depreciation u/s 32(1)(iia) whereas the instant case is related to claim of investment allowance u/s 32AC of the Act." 3. Brief facts of the case are that the assessee company had filed its return of income for A.Y. 2016-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ruling of ITAT, Pune, in Giriraj Enterprises vs. DC IT. [Appeal No. 1384, 1385, 1469 and 1470 of 2015]. In the assessment order, the A.O. had reproduced paragraph 12 to 25 from this ruling. In these paragraphs, the A.O. has pointed out that 1TAT has referred to the amendment in section 32(I)(iia) w.e.f. 01.04.2013. In this amendment after the expression "engaged in the business or manufacture or production or article or thing" the expression "or in the business of generation, transmission or distribution of power" has been added. Accordingly, the ITAT has reasoned that generation of power was not covered within the meaning of "manufacture or production of any article or thing". Based on this interpretation of analogous language in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Clover Developer (P ) Lid (supra), which is in favour of the Revenue, However, the assessee has relied on various decisions as referred to above of Mumbai. Delhi and Chennai Tribunals as well as Hon'ble Madras High Court and other coordinated benches, which are favour of the assessee. When two view are possible then view, which is favourable, be adopted. In this regard, we find that it has been held in plethora of judgements that to ease where two possible cm the same issue and there being no judgement on the said issue from the Jurisdictional Hon'ble High Court or the Hon'ble Apex Court, the view that is favourable to the assessee has to be adopted. In other words, the Hon'ble non-jurisdictional High Court's judgement in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled law where two interpretations are possible, the one, which is favourable to the assessee should be adopted. Applying the ratio of above decisions to the facts of the ease, it ears safely said that that when two views are possible on the same subject, the view favouring the assessee should be adopted. We find that it is now a settled proposition as held by the Hon'ble Supreme Court and the various Co-ordinate Beaches of the Tribunal that the process of generation of electricity is akin to manufacture of an article or thing, the assessee in the .instant case satisfy the requirement that it is engaged in the business of manufacture or production of an article or thing. Now coining to the amendment which has been brought-to by the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sanwana Agroils v/s ACIT in ITA No. 620 (Ind/2013) for AY 2007-08 in its order dated 16.05.2017, it is held that generation of electricity amounts to "manufacture or production of an article or thing" and hence is eligible for investment allowance u/s 32AC of the Act. The AO is accordingly directed to allow investment allowance u/s 32AC of the Act. 5.7 Ground of Appeal No. 1 is decided in favour of the appellant. 6. For statistical purpose, the appeal is allowed." 6. Against the above order, the Revenue is in appeal before us. 7. We have heard both the parties and perused the records. The ld. DR relied upon the order of the Assessing Officer and reiterated the ground taken that the Ld. CIT(A) has relied upon the case laws, with re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
