DCIT CEN CIR 44, MUMBAI V. DEEPAK NITRITE LTD, BARODA

ITA 2115/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88088 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 20-01-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: BHAVIN SHAH DR

Judgement Text

1 , IN THE INCOME TAX APPELLATE TRIBUNAL D B ENCH, MUMBAI , , , BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ./ I.T.A. NO.2116/MUM/2013 ( / ASSESSMENT YEAR : 2010-11) DCIT CENTRAL CIRCLE - 44, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. / VS. M/S. DEEPAK FERTILIZERS & PETROCHEMICALS CORPORATION LTD. 10-B, BAKHTAWAR, NARIMAN POINT MUMBAI-400 021. ./ ./PAN/GIR NO. : AAACD 1388 D ( /APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.2115/MUM/2013 ( / ASSESSMENT YEAR : 2010-11) DCIT CENTRAL CIRCLE - 44, 6 TH FLOOR,ROOM NO.656, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. / VS. M/S. DEEPAK NITRITE LIMITED 9/10, KUNJ SOCIETY ALKAPURI BARODA-390 007. ./ ./PAN/GIR NO. : AAACD 7468 A ( /APPELLANT ) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI MANJUNATHA SWAMY - CIT - DR / RESPONDENT BY : SHRI BHAVIN SHAH - DR !' # $ / DATE OF HEARING : 19/01/2015 %&' $ / DATE OF PRONOUNCEMENT : 30 /01/2015 ( / O R D E R PER BENCH :- THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAI NST TWO SEPARATE ORDERS DATED 13/12/2012 AND 18.12.2012 RE SPECTIVELY PASSED BY THE CIT(A) FOR THE ASSESSMENT YEAR 2010-11. THE REVENUE IN ITA NO.2116/MUM/2013 HAS RAISED THE FOLLOWING GROUNDS :- 2 2116 & 2115/MUM/13 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S 801A AMOUNTING TO R S. 37,24,64,460/- IN RELATION TO THE ASSESSEE'S CAPTIVE POWER PLANT, IGNORING THE FA CT THAT THERE IS NO PROFIT DERIVED FROM THE POWER PLANT AS THE POWER WAS NOT SOLD BUT STOOD CONSUMED IN MANUFACTURING UNITS OF THE ASSESSEE COMPANY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S 801A AMOUNTING TO R S. 37,24,64,460/- IN RELATION TO ITS CAPTIVE POWER PLANT BY ACCEPTING THE RATE CL AIMED BY THE ASSESSEE @ 4.68 PER UNIT I.E. THE RATE OF POWER SOLD BY THE ELECTRI CITY BOARD, WITHOUT CONSIDERING THAT THE ELECTRICITY BOARD HAS TO INCUR COSTS WHICH ARE ABSE NT IN THE CASE OF ASSESSEE'S OWN CAPTIVE POWER PLANT. THIS GROUND IS WITHOUT PREJUDI CE TO GROUND NO. 1. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S 801A IN RESPECT OF POWER GENERATED FROM STEAM WITHOUT APPRECIATING THAT STEAM IS A BY-PRODUCT OF THE POWER GENERATED AND HENCE CANNOT BE CONSIDERED A POWER.' 2. GROUND NO. 1 AND 2 REGARDING DEDUCTION UNDER SE CTION 80IA IN RESPECT OF CAPTIVE POWER PLANT AND RATE OF TARIFF FOR COMPUTAT ION OF DEDUCTION. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF CHEMICALS AND FERTILIZERS INCLUDING METHANOL, DILUTE NITRIC ACID, AMMONIUM NITRATE AND AMMONIUM NITRO PHOSPHATE. THE ASSESSEE HAS INSTALLED A CAPTIVE POW ER PLANT TO MEET ITS ELECTRICITY REQUIREMENT. FOR THE ASSESSMENT YEAR UNDER CONSIDER ATION THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80IA W.R.T. PROFITS FROM CO GENERATION CAPTIVE POWER PLANT AMOUNTING TO RS.37,64,460/-. THE AO WAS OF THE VIEW THAT THE PROFIT CLAIMED OF THE CAPTIVE POWER PLANT ARE ONLY NOTIONAL PROFITS AND, THEREFORE, THE AO HELD THAT THE SAVING IN COST CANNOT BE EQUATED WITH PROFITS. ACCORDINGLY , THE AO DISALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 80IA. THE ASSESSEE VALUED E LECTRICITY GENERATED BY ITS CAPTIVE POWER PLANT @ RS.4.68% PER UNIT WHICH IS ARRIVED AT AFTER DEDUCTING RS.0.95 ON ACCOUNT OF FIXED DEMAND CHARGES RECEIVED BY ELECTRICITY BOAR D IN ITS BILLS FOR ELECTRICITY CONSUMPTION. THE AO DID NOT ACCEPT THE RATE AT WHIC H THE ASSESSEE HAD VALUED THE CAPTIVE POWER GENERATION AND HELD THAT THE ADJUSTME NT OF 40% IN THE RATE OF ELECTRICITY WOULD BE ADOPTED TO WORK OUT THE PROFITS WHICH WOUL D BE REALIZED BY THE ASSESSEE THROUGH THE OPERATIONS OF CAPTIVE POWER PLANT. 3 2116 & 2115/MUM/13 2.1 ON APPEAL THE CIT(A) ALLOWED THE CLAIM OF THE A SSESSEE REGARDING ELIGIBILITY OF DEDUCTION UNDER SECTION 80IA IN RESPECT OF CAPTIVE POWER PLANT BY FOLLOWING THE DECISION OF SETTLEMENT COMMISSION FOR THE ASSESSMEN T YEAR 2009-10. CIT(A) HAS ALSO ACCEPTED THE CLAIM OF THE ASSESSEE IN APPLYING THE RATE CHARGED BY THE ELECTRICITY BOARD IN RESPECT OF ELECTRICITY SUPPLIED TO THE ASSESSEE. 2.2 WE HAVE HEARD THE LD.AR AND THE LD. DR AND CONS IDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT AN IDENTICAL ISS UE HAS BEEN CONSIDERED BY THE AHMEDABAD BENCH OF THIS TRIBUNAL IN THE CASE OF SIS TER CONCERN OF THE ASSESSEE NAMELY DEEPAK NITRATE LTD. IN ITA NO.819 & 1447/AHD./2010 FOR ASSESSMENT YEAR 2006-07 VIDE ORDER DATED 21.09.2012 PARA 41 TO 44 AS UNDER :- 41. BEFORE US, THE LD. D.R. SUBMITTED THAT THE A.O . AFTER CONSIDERING VARIOUS FACTORS HAS RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE, HE THUS RELIED ON THE ORDER OF THE A.O. 42. ON THE OTHER HAND, THE LD. A.R. SUBMITTED THAT THE RATIO OF THE DECISION IN THE CASE OF ADDL. CIT VS. JINDAL STEEL & POWER LTD.(16 SOT 509) AND WEST COAST PAPER MILLS VS. ACIT (103 ITD 19) ARE APPLICABLE TO THE ASSESSEES CASE AND CIT (A) HAS RIGHTLY ALLOWE D THE DEDUCTION TO THE ASSESSEE. THE ASSESSEE ALSO RELIED ON THE DECISION IN THE CASE OF TAMILNADU PETRO PRODUCTS LTD. VS. ACIT (2011) 338 I TR 643 (MAD.). 43. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE A.O. DISALLOWED THE CLAIM OF THE ASSESS EE FOR DEDUCTION U/S.80IA FOR THE REASON THAT THE DEDUCTION WAS AVAI LABLE ONLY WHERE SEPARATE BUSINESS UNDERTAKING IS PUT UP FOR GENERAT ION/DISTRIBUTION OF POWER. SINCE THE ASSESSEE HAS SET UP THE POWER UNIT MAINLY FOR CAPTIVE USE, THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION. TH E A.O. WAS FURTHER OF THE VIEW THAT EVEN IF THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION, THE QUANTUM OF DEDUCTION WAS TO BE WORKED OUT WITH REFERENCE TO MARKET RATE OF ELECTRICITY GENERATED AND NOT AT THE RATE CLAIMED. THE ASSESSEE HAD WORKED OUT THE PROFIT ON THE BASIS OF RATE OF POWE R AT RS. 5.35 PER UNIT AS AGAINST THAT THE RATE OF POWER AT 2.11 PER UNIT BE ING CONSIDERED BY A.O. WE FIND THAT BEFORE HONBLE MADRAS HIGH COURT IN T HE CASE OF TAMILNADU PETRO PRODUCTS (SUPRA) ONE OF THE QUESTION BEFORE HONBLE HIGH COURT WAS WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE TRIBUNAL WAS RIGHT IN HOLDING THAT INCOME DERIVED BY THE ASS ESSEE FROM GENERATION OF ELECTRICITY WHICH WAS CAPTIVELY CONSUMED IS NOT ENTITLED TO RELIEF U/S. 4 2116 & 2115/MUM/13 80IA OF THE ACT? THE HONBLE HIGH COURT RELYING ON THE DECISION OF CIT VS. THIAGARAJ MILLS LTD. (TAX CASE NO.68 TO70 OF 2010) HAS HELD AS UNDER:- 8. THE CONTENTION THAT ONLY WHATEVER POWER GENERA TED FROM, THE SALE TO AN OUTSIDER OR THE ELECTRICITY BOARD, AND T HE PROF IT OR GAIN DERIVED BY SUCH SALE ALONG CAN BE TAKEN AS PROFITS OR GAINS DERIVE D BY THE ASSESSEE AS MENTIONED IN SECTION 80-IA(1) OF THE INCOME TAX AC T HAS BEEN REJECTED BY THE TRIBUNAL IN THE ORDER IMPUGNED. IN OUR CONSID ERED VIEW, THE TRIBUNAL WAS WELL JUSTIFIED IN HAVING REJECTED SUCH A STAND OF THE APPELLANT. HAVING REFERRED TO SECTION 80-IA (1) OF THE INCOME TAX AC T, WE ARE ALSO CONVINCED THAT WHAT IS ALL TO BE SATISFIED IN ORDER TO BE EL IGIBLE FOR THE DEDUCTION AS PROVIDED UNDER SUB-SECTION (1) OF SECTION 80-IA, T HE ASSESSEE SHOULD HAVE SET UP AN UNDERTAKING OR ANY ENTERPRISE AND FROM A ND OUT OF SUCH AN UNDERTAKING OR AN ENTERPRISE SET UP, ANY PROFIT OR GAIN IS DERIVED, FALLING UNDER THE SUB-SECTION COVERED BY SUB-SECTION (4) OF SECTION 80- IA OF THE INCOME TAX ACT, SUCH PROFIT OR GAIN DERIVED BY THE ASSESSEE CAN BE DEDUCTED IN ITS ENTIRETY FOR A PERIOD OF 10 YEARS STARTING FROM THE DATE OF FUNCTIONING OF THE SET UP. THE CONTENTION THAT PROF IT OR GAIN CAN BE CLAIMED BY THE ASSESSEE ONLY IF SUCH PROFIT OR GAIN IS DER IVED BY THE SALE OF ITS PRODUCT OR POWER GENERATED TO AN OUTSIDER CANNOT BE THE MANNER IN WHICH THE PROVISIONS CONTAINED IN SEC TION 80-IA(1) CAN BE INTERPRETED. THE EXPRESSION DERIVED USED IN THE SAID SECTION 80- I A(1) IN THE BEGINNING AS WELL AS IN THE LAST PART OF SUB-SECTION (4) MAKES IT ABUNDANTLY CLEAR THAT SUCH PROFIT OR GAIN COULD BE OBTAINED BY ONES OW N CONSUMPTION OF THE OUTCOME OF ANY SUCH UNDERTAKING OR BUSINESS ENTERP RISE AS REFERRED TO IN SUB-SECTION ( 4) OF SECTION 80-IA. THE DICTIONARY MEANING OF THE EXPRESSION DERIVE IN THE NEW OXFORD DICTIONARY OF ENGLISH S TATES OBTAINING SOMETHING FROM A SPECIFIED SOURCE. IN SECTION 80-IA(1) ALS O NO RESTRICTION HAS BEEN IMPOSED AS REGARDS THE DERIVING OF PROFIT OR GAIN IN ORDER TO STATE THAT SUCH PROFIT OR GAIN DERIVED ONLY THROUGH AN OUTSIDE SOU RCE ALONG WOULD MAKE ELIGIBLE FOR THE BENEFITS PROVIDED IN THE SAID SECT ION. 44. CIT (A) HAS GIVEN A FINDING THAT THE FACTS OF T HE CASE ARE IDENTICAL TO THAT IN THE CASE OF WEST COAST PAPER MILLS AND JIND AL POWER & STEEL LTD. (SUPRA). THE REVENUE HAS NOT BEEN IN A POSITION TO CONTROVERT THESE FACTS BY BRINGING ANY MATERIAL TO THE CONTRARY ON RECORD. IN VIEW OF THE AFORESAID FACTS AND RESPECTFULLY FOLLOWING THE DEC ISION OF HIGH COURT AND CO-ORDINATE BENCH, WE FIND NO REASON TO INTERFERE TO THE ORDER OF CIT (A). THUS THIS GROUND OF THE REVENUE IS DISMISSED. 2.3 NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NO TICE BY THE REVENUE ACCORDINGLY FOLLOWING THE DECISION OF THIS TRIBUNAL IN THE CASE OF SISTER CONCERN OF THE ASSESSEE WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER O F THE CIT(A) QUA THE ISSUE OF DEDUCTION 5 2116 & 2115/MUM/13 UNDER SECTION 80IA IN RESPECT OF CAPTIVE POWER PLAN T AS WELL AS THE VALUATION OF POWER BY APPLYING THE TARIFF CHARGED BY THE STATE ELECTRI CITY BOARD. ACCORDINGLY, THE GROUND NO. 1 AND 2 OF THE REVENUES APPEAL ARE DISMISSED. 3. GROUND NO.3 IS REGARDING DEDUCTION UNDER SECTION 80IA IN RESPECT OF STEAM BEING A BYE PRODUCT OF POWER GENERATION AND USED IN THE PROCESS OF OTHER PRODUCTS BY THE ASSESSEE . THE ASSESSEE CLAIMED DEDUCTION UN DER SECTION 80IA OF THE INCOME TAX ACT IN RESPECT OF VALUE OF STEAM GENERATED FROM T HE CAPTIVE POWER PLANT. THE ASSESSEE IS USING THE STEAM IN ITS PROCESS OF MANUFACTURING OF CHEMICAL PRODUCTS. THE AO HELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR THE BENEFITS OF SECTION 80IA AS THIS IS NOT EQUIVALENT TO THE POWER/ELECTRICITY GENERATED BY TH E CAPTIVE POWER PLANT. 3.1 ON APPEAL, THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE SETTLEMENT COMMISSION IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 TO 2009-10. 4. WE HAVE HEARD THE LD. DR AS WELL AS THE LD. AR A ND CONSIDERED THE RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE SETTLEMENT COMMISSION VIDE ITS ORDER DATED 2/12/2011 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 200 4-05 TO 2009-10 HAS CONSIDERED AND DECIDED THIS ISSUE IN PARA 6.3 AS UN DER :- 6.3 THE OTHER MAJOR GROUND TAKEN IS THAT A DISTINC TION HAS TO BE DRAWN BETWEEN ELECTRICITY, AND STEAM, AS FORMS OF POWER E LIGIBLE FOR DEDUCTION U/S.801A(4)(IV). ALTHOUGH THE NOTE OF THE COMMISSIO NER FAIRLY ADMITS THAT THIS ISSUE HAS GONE IN FAVOR OF THE ASSESSEE UPTO THE LE VEL OF THE TRIBUNAL, IT IS IN THE ABSENCE OF DECISIONS OF THE HIGH COURTS OR T HE APEX COURT IN THE MATTER, THE ISSUE HAS NOT ATTAINED FINALITY. WE FIND THAT I N SEVERAL CASES THE TRIBUNAL HAS HELD THAT STEAM IS A FORM OF POWER COVERED UNDE R THE AFORESAID BENEFICIAL PROVISIONS. THE APPLICANT HAS RELIED ON THE DECISIO NS OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SIAL SBEC BIO ENERGY LIMITE D VS DCIT [2004 TTJ 866 DELHI] AND THAT OF JAIPUR BENCH IN THE CASE OF MAHA RAJA SHREE UMAID MILLS LTD. [2009 TTJ 791 JAI.]. IN THE FORMER CASE, IT WA S HELD AS UNDER: 6 2116 & 2115/MUM/13 ASSUMING THAT THE ASSESSEE USES ELECTRICITY INSTE AD OF STEAM AND BRINGS THE SAME RESULT, THEN WHAT IS WRONG WITH THE ASSESSEE WHEN HE USES THE STEAM AND BRINGS THE SOME RESULTS. THE BASIC CO NCEPT WHICH ONE MUST UNDERSTAND IS AS TO HOW THE SAME END PRODUCT HAS BE EN BROUGHT- TO THE DEPLOYMENT OF ENERGY THAT IS MATERIAL AND NOT, THE FORM OF ENERGY BE IT A FIRM OF MECHANICAL, ELECTRICAL OR THERMAL ENERGIES AND IF THE END RESULTS ARE BROUGHT THROUGH THE THERMAL ENERGY PRODUCED THROUGH STEAM, WE FEEL THAT THIS IS DEFINITELY A FORM OF POWER WHICH WOULD BE F ALLING WITHIN THE AMBIT OF EXPRESSION POWER USED UNDER SECTION 80IA (4)(IV) OF THE I. T. ACT. SIMILARLY IN MAHARAJA SHREE UTNAID MILLS (SUPRA) TH E ISSUE WAS WITH REGARD TO THE ELIGIBILITY OF STEAM FOR DEDUCTION UL S 8OIA(4)(IV). IN THAT CASE THE DEPARTMENT TOOK THE STAND THAT IT IS ONLY CASES OF GENERATION OF ELECTRICITY AND NOT CASES OF PRODUCTION OF STEAM, T HAT QUALIFY FOR DEDUCTION UNDER THE AFORESAID SECTION. THE BENCH NOTED THE DE CISION OF THE DELHI TRIBUNAL IN SIAL SBEC'S CASE (SUPRA) AND HELD THAT STEAM GENERATED BY THE INDUSTRIAL UNDERTAKING COMES WITHIN THE MEANING OF POWER AS PER SECTION 801A, AND WOULD HENCE QUALIFY FOR BENEFIT. THE STAND OF THE DEPARTMENT BEFORE US IS THAT WHEREAS THE ABOVE DECI SIONS WOULD SQUARELY APPLY TO THE FACTS OF THE APPLICANT'S CASE , SAME HAS NOT BECOME FINAL IN THE ABSENCE OF PRONOUNCEMENTS OF THE HIGHER COUR TS. WE ARE NOT INCLINED TO DISREGARD THE CURRENT FINDINGS OF THE TRIBUNAL M ERELY BECAUSE THE MATTER IS STILL PENDING IN FURTHER APPEAL. WE ENTIRELY AGREE WITH THE OPINIONS EXPRESSED THEREIN THAT STEAM HAS TO BE EQUATED WITH ELECTRICITY IN THE CONCEPT OF POWER AS ENVISAGED BY SECTION 80IA(4)(IV ) OF THE ACT. ACCORDINGLY WE FIND LITTLE LEGAL MERIT IN THIS ARGU MENT ADVANCED BY THE COMMISSIONER. 4.1 IT IS CLEAR THAT THE SETTLEMENT COMMISSION HAS FOLLOWED THE DECISION OF DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF SIAL SBEC ENER GY LTD. VS. DCIT (12 TTJ 866) AS WELL AS THE DECISION OF JAIPUR BENCH OF THIS TRIBUN AL IN CASE OF MAHARAJA SHRI UMED MILL LTD. SINCE NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTICE, THEREFORE, WE DO NOT FIND ANY ERROR IN THE IMPUGNED ORDER OF THE CIT(A) IN ALLOWING THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE SETTLEMENT COMMISS ION IN ASSESSEES OWN CASE. GROUND NO.3 IS DISMISSED. 5. APPEAL OF THE REVENUE IS DISMISSED. 7 2116 & 2115/MUM/13 ITA NO.2115/MUM/2013:- THE REVENUE HAS RAISED THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S 801A AMOUNTING TO R S. 1,74,66,016/- IN RELATION TO THE ASSESSEE'S CAPTIVE POWER PLANT, IGNORING THE FA CT THAT THERE IS NO PROFIT DERIVED FROM THE POWER PLANT AS THE POWER WAS NOT SOLD BUT STOOD CONSUMED IN MANUFACTURING UNITS OF THE ASSESSEE COMPANY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S 801A AMOUNTING TO R S. 1,74,66,016/- IN RELATION TO ITS CAPTIVE POWER PLANT BY ACCEPTING THE RATE CLAIM ED BY THE ASSESSEE @ 6.16 PER UNIT I.E. THE RATE OF POWER SOLD BY THE ELECTRICITY BOARD, WITHOUT CONSIDERING THAT THE ELECTRICITY BOARD HAS TO INCUR COSTS WHICH ARE ABSE NT IN THE CASE OF ASSESSEE'S OWN CAPTIVE POWER PLANT. THIS GROUND IS WITHOUT PREJUDI CE TO GROUND NO. 1. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) ERRED IN ALLOWING DEDUCTION U/S 801A IN RESPECT OF POWER GENERATED FROM STEAM WITHOUT APPRECIATING THAT STEAM IS A BY-PRODUCT OF THE POWER GENERATED AND HENCE CANNOT BE CONSIDERED A POWER.' 5.1 SINCE THE GROUNDS RAISED IN THE ABOVE APPEAL BY THE REVENUE ARE IDENTICAL TO THE APPEAL IN ITA NO.2116/MUM/2013, THEREFORE, IN VIEW OF OUR FINDING ON THESE ISSUES IN THE APPEAL IN ITA NO.2116/MUM/2013 THE APPEAL OF T HE REVENUE IN ITA NO. 2115/MUM/2013 FOR ASSESSMENT YEAR 2010-11 IS DISMI SSED. 6. BOTH THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/1 /20 15 ( %&' ! ) *' + 30/01 /2015 ,# SD/- SD/- ( SANJAY ARORA ) ( VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER !-# MUMBAI; *' DATED 30/01/2015 . ' . ./ JV, SR. PS 8 2116 & 2115/MUM/13 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , !' / DR, ITAT, MUMBAI 6. #$ %' / GUARD FILE. & & & & / BY ORDER, & //TRUE COPY// ' ' ' ' / &( &( &( &( ) ) ) ) (DY./ASSTT. REGISTRAR) , !' / ITAT, MUMBAI.