The order of the Bench was delivered by
George George K., Judicial Member - This appeal at the instance of the Department is directed against the order of the Commissioner of Income-tax (Appeals)-III Bangalore dated March 30, 2012 in relation to the assessment year 2008-09.
2. The assessee is a company engaged in the business of gold mining and extraction, and windmill power generation. For the assessment year in question, the return of income was filed on September 27, 2008 declaring total income of Rs. 130,06,59,847. The case was selected for scrutiny and notice under section 143(2) was issued on August 13, 2009. In the course of the scrutiny assessment, it was noticed by the Assessing Officer that the assessee had erected and commissioned on January 23, 2008 windmill of power generation capacity of 4.5 MW. The cost of windmill was Rs.27,58,72,617. The assessee apart from claiming normal rate of depreciation of 80 per cent. (applied 40 per cent. being used for less than 180 days), also claimed additional depreciation at 10 per cent. amounting to Rs.2,75,87,268.
3. The scrutiny assessment order was completed under section 143(3) of the Act by denying the benefit of additional depreciation. The relevant observation of the Assessing Officer for denying the claim of additional depreciation reads as follows (page 3) :
". . . As per the provisions, additional depreciation is allowable to any assessee engaged in the business of manufacture and production of any article or thing on the plant and machinery acquired and installed for the purpose of producing such article or thing. In this assessee's case, the assessee runs two lines of business, one being mining and selling of ore and the other is wind power division. The fact that wind power generation, its maintenance operations and all other activities are organised as a separate business called as wind power division is evident from the letter heads produced by the assessee. In so far as this line of business is concerned, the power generated in the windmill is directly supplied to KPTCL and invoiced as per power purchase agreement. Therefore, the power produced by this plant and machinery has not been used in the production of either ore or fine gold which are the products of the assessee. In this view, the plant and machinery of windmill cannot be held as installed for the business of manufacture or production of gold. Therefore, the assessee is not eligible for additional depreciation on windmill. The claim of Rs. 2,75,87,268 made under this head is accordingly denied."
4. The assessee being aggrieved filed an appeal before the Commissioner of Income-tax (Appeals). It was contended before the Commissioner of Income-tax (Appeals) that the Assessing Officer has erred in law and facts in not allowing the deduction on account of additional depreciation on the assumption that the windmill was not used in the manufacture of products of the company and surmising that the sale of power by the company is not its business. The Assessing Officer has erred in assuming that the power produced by the company should be used only in producing the products of the company.
5. The Commissioner of Income-tax (Appeals) allowed the claim of the assessee and directed the Assessing Officer that the disallowance of Rs.2,75,87,268 made by the Assessing Officer should be deleted. The findings of the Commissioner of Income-tax (Appeals) read as follows :
"4.9.1 I find that the objects of the company are detailed in paragraph 3 of the same, wherein at sub-paragraph (e) it is thus stated : To carry on the business of a General Electric Power Supply Company in all its branches, and to construct, lay down, establish, fix and carry out all necessary power stations, cables, wires, lines, accumulators, lamps and other works and to generate, accumulate, distribute and supply electricity, and to light cities, towns, streets, markets, theatres, buildings and places both public and private.
This being the case, I am not in agreement with the Assessing Officer that the power generated by the appellant should only be used for the production of gold. It is a separate line of business that is being run, and the power is being sold to KPTCL through a power purchase agreement, an arrangement which has been accepted by the Assessing Officer on scrutiny of the case. Hence, it is clear that the windmills are being used for the appellant's business purposes. The additional depreciation on them as available per law cannot therefore be denied on this ground. The disallowance of Rs. 2,75,87,268 made by the Assessing Officer is accordingly deleted and the appellant gains relief to this extent under this ground of appeal."
6. The Revenue being aggrieved is in appeal before us raising the following effective grounds :
"2. The Commissioner of Income-tax (Appeals) erred in granting additional depreciation of Rs. 2,75,87,268 on the cost of windmill while such benefit under section 32(1)(iia) is allowable to the assessee engaged in the manufacture or production of any article or thing but in the assessee's case, the power produced is not used in production of any article or thing as it is sold to KPTCL and the power as such cannot be called as an article or a thing.
3. The Commissioner of Income-tax (Appeals) ought to have appreciated that in view of clause (D) of the proviso under section 32(1)(iia), this benefit is not intended for acquisition and installation of such plant and machinery whose total cost is allowed as deduction in any one previous year and windmills although now are eligible for 80 per cent. depreciation were earlier eligible for 100 per cent depreciation."
7. The learned Departmental representative relied on the grounds raised in the memorandum of appeal, whereas the learned authorised representative supported the conclusions of the Commissioner of Income-tax (Appeals).
8. We have heard the rival contentions and perused the relevant material on record. As rightly pointed out by the Commissioner of Income-tax (Appeals), on perusal of the object of the company, it is clear that the power generated through windmill is second line of business of the assessee-company. The power generated by the windmill is a product of the assessee-company and it is covered under the words "article" or "thing" which is tradable/identifiable. In other words, electricity falls within the definition of Sale of Goods Act, 1930 and process of generation of electricity is akin to manufacture or production of an "article" or "thing". The power generated need not necessarily be used in the production of the assessee's own products namely mining and extraction of gold. The use of electricity in the manufacturing activity of the core business of the assessee is not a precondition for the grant of additional depreciation under the statute.
9. The amendment brought about in section 32(1)(iia) by the Finance Act, 2012 to include the business of generation and distribution of power to the benefit of additional depreciation is only clarificatory. A similar view has been held by the hon'ble Chennai Bench of the Tribunal in the case of Asstt. CIT v. M. Satishkumar [2013] 33 taxmann.com 396. The relevant findings of the Tribunal read as follows (page 649) :
"We have heard the submissions made by the respective parties and have also examined the judgments orders relied on by the authorised representative of the assessee. A perusal of the judgments clearly shows that generation of electricity is akin to manufacturing of a new product. In the instant case, electricity which may not be seen with the eyes, however, its effect can be seen and felt. The electricity can be transmitted, transferred, delivered, stored, possessed, etc. The hon'ble Supreme Court in the case of the CST v. Madhya Pradesh Electricity Board, [1970] 25 STC 188 (SC) has held that electricity falls within the definition of goods under the provisions of Sale of Goods Act, 1930. The Delhi Bench of the Tribunal in the case of NTPC Ltd. (supra) after a detailed examination of several judgments, Acts, Constitution of India, has concluded that the process of generation of electricity is akin to manufacture of an article or thing.
In view of the above, we are of the considered opinion that generation of electricity is a manufacturing activity. The assessee is involved in the manufacturing activity and fulfils the conditions as laid down under section 32(1)(iia). The Government vide Finance Act, 2012 has amended the provisions of section 32(1)(iia) to include the business of generation or generation and distribution of power, eligible for benefit under section 32(1)(iia). Although the said amendment is with effect from April 1, 2013 but it gives impetus to the view that generation of electricity is a manufacturing process and qualifies for the benefits under section 32(1)(iia). In view of the above, the order of the Commissioner of Income-tax (Appeals) is upheld and the appeal of the Revenue is dismissed being devoid of merit."
10. The plea of the Revenue raised in ground No. 3 is also devoid of merits, since in the relevant previous year (the year in which the windmills were installed), the assessee was entitled to depreciation only at the rate of 80 per cent. The assessee would not have been entitled to additional depreciation, if the assessee was eligible for 100 per cent. depreciation.
11. In view of the aforesaid reasons and following the order of the co-ordinate Bench of the Tribunal in the case of M. Satishkumar (supra), we uphold the order of the Commissioner of Income-tax (Appeals). It is ordered accordingly.
12. In the result, the appeal filed by the Revenue is dismissed.
The order pronounced in the open court on the 2 August, 2013.