2018 (9) TMI 1760

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.... 2002-03 and 2003-04. The appeal has been admitted by the order dated 17.09.2008 on the following substantial questions of law. "1. Whether the Appellate Tribunal is correct in law in confirming the action of the respondent in rejecting the claim of deduction under Section 80IA of the Income Tax Act in the computation of taxable total income comprised and derived from establishing, operating and maintaining the power plant engaged in generation or generation and distribution of power ? 2. Whether the Tribunal is correct in law in concluding that the provisions of Sub Section 14 to Section 80 IA of the Act inserted retrospective in the Act were attracted to the facts of the case even though the scope of the contract under c....

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....ld defeat the very purpose of Section 80IA of the said Act. We fully endorse the view taken by the Tribunal in this regard. 8. With regard to the factual aspect, it has to be seen as to whether the Assessing Officer and the First Appellate Authority had rightly appreciated and construed the effect of the agreement, which the assessee entered into with the generating company namely Samalpatti Power Corporation Private Limited (SPCL). The Assessing Officer examined the terms and conditions of the agreement entered into between the assessee and the SPCL and found that the appellant is only a contractor and the power plant for generation and distribution of electricity is owned by the SPCL 9. The assessee contended before the ....

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....to Section 2(29) of the Electricity Act, 2003, which defines 'generate' to mean to produce electricity from a generating station for the purpose of giving supply to any premises or enabling a supply to be so given. 13. In our considered view, the term 'generating company' can only refer to the SPCL and not the appellant, since the Assessing Officer, the First Appellate Authority and the Tribunal, after considering the scope of the agreement entered into between the appellant and the SPCL, clearly held that the appellant is not the owner of the power plant and that it does only maintenance work, for which, it is given a fee. Even assuming that the appellant contributed technical knowhow for the purpose of generating ....