Income Tax Appellate Tribunal - Kolkata
Pati Durga Cold Storage vs Income-Tax Officer on 30 May, 1986
Equivalent citations: [1986]18ITD132(KOL)
ORDER
T.D. Sugla, President
1. This appeal has been filed by the assessee against the order dated 31-12-1981 of the Commissioner passed under Section 263 of the Income-tax Act, 1961 ('the Act') relating to the assessment year 1980-81.
2. The assessee is a partnership firm deriving income from business in running a cold storage. In course of assessment proceedings, it claimed under Section 32A of the Act, investment allowance on a sum of Rs. 7,61,141 being cost of the plant and machinery installed in its cold storage. In the assessment done on 11-5-1981, the ITO allowed the investment allowance as claimed by the assessee.
3. Subsequently, the Commissioner scrutinised the records of the assessee and came to hold the view that the investment allowance under Section 32A has been wrongly allowed by the ITO in the assessment. According to the Commissioner, the plant and machinery used by the assessee in its cold storage plant did not qualify for relief under Section 32A. Hence, he started proceedings under Section 263 and asked the assessee to explain as to why the aforesaid investment allowance granted by the ITO should not be withdrawn. The assessee objected to the proposal of the Commissioner on several grounds. In particular, it was urged by the assessee that the act of cold storage involved manufacturing and, thus, the action of the ITO was justified. Reliance was placed on the decision in the case of CIT v. Yamuna Cold Storage [1981] 129 ITR 728 (Punj. & Har.). The Commissioner did not agree with the submissions of the assessee. He stated that in the case of Yamuna Cold Storage (supra) the issue involved was as to whether the assessee therein was engaged in manufacturing process, the emphasis being on the processing activity. Hence, the High Court held that the building of a cold storage is entitled to depreciation at rates applicable to a factory building. According to the Commissioner, the aforesaid case was no authority for granting investment allowance under Section 32A to a person engaged in cold storage business. He also referred to the decisions in the cases of CIT v. Radha Nagar Cold Storage (P.) Ltd. [1980] 126 ITR 66 (Cal.) and Addl. CIT v. Farrukhabad Cold Storage (P.) Ltd. [1977] 107 ITR 816 (All.) and observed that these two decisions laid down the proposition that the activity of processing is carried on in a cold storage plant. However, the Commissioner observed that processing did not amount to manufacture and so those two decisions which were concerned with the language used in the definition of an 'industrial company' under the Finance Acts, were not of any help to the present assessee. Next, the Commissioner observed that for the purpose of Section 32A, it was necessary for the assessee to be engaged in the manufacture or production of an article or thing. He referred to the decision of the Supreme Court in the case of Union of India v. Delhi Cloth & General Mills Co. Ltd. AIR 1963 SC 791 wherein the activity of processing has been held to be distinct from the activity of manufacture. He also referred to the decision in the case of Chowgule & Co. Ltd. 1 SCC 653 wherein it has been laid down that an activity amounts to manufacture only when the commodity which is subject to such activity can no longer be regarded as the original commodity but is recognised in the trade as a new and distinct commodity. Relying on the decision in the case of Radha Nagar Cold Storage (P.) Ltd. (supra), he observed that the act of cold storage was only an act where the food products stored were prevented from natural decay and were kept in their original state. According to the Commissioner, the activity of cold storage does not amount to manufacture or production of any article or thing and so the condition stated in Section 32A(2)(b) was not satisfied. Thus, he came to the conclusion that the assessment order passed by the ITO was erroneous so far as it was prejudicial to the interests of the revenue. He also referred to certain decisions of the Tribunal enumerated in his order in support of the conclusion. Finally, he passed the impugned order dated 31-12-1981, directing the ITO to withdraw the investment allowance allowed in the original assessment and modify the assessment accordingly.
4. When this appeal first came up for hearing, it was noticed that conflicting decisions had been taken by the different Benches of the Tribunal on the issue involved in this appeal. Hence, a reference was made to the President to constitute a Special Bench in order to resolve the conflict. Accordingly, the President constituted this Special Bench under Section 255(3) of the Act in order to decide the following point :
Whether, on the facts and in the circumstances of the case, the investment allowance under Section 32A of the Income-tax Act, 1961, could be allowed to a cold storage ?
That is how the present appeal has come up for hearing before us.
5. Dr. Debi Pal, the learned advocate, appearing as intervener for Dhirendra Nrayan Cold Stoage [IT Appel Nos. 671(Cal.) of 1981 and 315 and 316 (Cal.) of 1983] opened the case for the appellant before us. At the outset, he stated that the activity of the assessee does not amount to manufacture as has been held in the case of Delhi Cloth & General Mills Co. Ltd. (supra). His case was that a cold storage is engaged in the production of an Article or thing. In this connection, he referred to the decision of the Supreme Court in the case of Chrestien Mica Industries Ltd. v. State of Bihar [1961] 12 STC 150. That was a case under the Bihar Sales Tax Act, 1947. In that case, the assesses was engaged in extracting crude mica from the mines and breaking them into small pieces. The question which arose for consideration in that case was as to whether the process of mining mica, which was a commodity sold by the appellant-company, could be said to be a process of production or manufacture within the meaning of Section 2(g) of the Bihar Sales Tax Act. The Supreme Court observed as under :
The decision of the question raised depends upon whether the process which is used by the appellant would fall within the meaning of the words 'produced or manufactured in Bihar'. The appellant company is carrying on mica mining operations by which crude mica is taken out of the mine and processed into split mica which is a commercial commodity. What happens is that there is winning of crude mica from the earth which is split into thinner plates and cut into commercial sizes.... (p. 152) Subsequently, the Supreme Court came to the following conclusion :
Neither of the words 'production' or 'manufacture' is defined in the Bihar Sales Tax Act but according to the Oxford English Dictionary 'production' means amongst other things that which is produced ; a thing that results from any action, process or effort, a product ; a product of human activity or effort.
It is obvious that what is described in the report above quoted would fall within the dictionary meaning of the word 'production'. ... (p. 153) Dr. Pal urged before us on the authority of the above case that a thing which comes out of application of human efforts is, the result of production. According to him, the assessee before us is engaged in the business of cold storage. A cold storage preserves potatoes in their natural state as a result of some efforts or process done to the potatoes. He referred to the decision in the case of Radha Nagar Cold Storage (P.) Ltd. (supra) for the proposition that in a cold storage potatoes are subjected to processing. Since a cold storage is engaged in the processing of goods [vide Radha Nagar Cold Storage (P.) Ltd.'s case (supra)] and since processing of goods amounts to production [vide Chrestien Mica Industries Ltd.'s case (supra)] Dr. Pal contended that the cold storage was engaged in the production of an Article or thing within the meaning of Section 32A(2)(6). He also urged that there is a difference between the potatoes originally kept in the cold storage and the potatoes which were taken out for sale after the lapse of several months. In the meantime, the enzymes in the potatoes were destroyed which prevent sprouting and some of the starch in the potatoes was converted into sugar. According to Dr. Pal, the act of processing to which the potatoes are subjected to in the cold storage changes its very nature and converts them into a different commodity. Then, Dr. Pal referred to the decision in the case of Farrukhabad Cold Storage (P.) Ltd. (supra) which has been followed by the Calcutta High Court in the case of Radha Nagar Cold Storage (P.) Ltd. (supra). Anticipating an argument from the other side, Dr. Pal referred to the decision in the case of Farrukhabad Cold Storage (P.) Ltd. v. CIT [1979] 119 ITR 895 (All.). In that case, the question which arose for consideration was as to whether the assessee which was running a cold storage was engaged in a priority industry in the sense that it was engaged in the production of processing seeds. He stated that the judgment in that case went against the assessee because the issue for consideration therein was quite different. Processing of seeds is different from the keeping of potatoes in the cold storage. In that case there was no evidence to show that the potatoes stored in the cold storage of the assessee were used entirely for seed purposes after they came out of the cold storage. Dr. Pal stated before us that the decision in that case went against the assessee because of the above reason and so the said case could not be pressed into the service of the revenue in the present case where the issue is entirely different.
6. Shri S. Majumdar, the learned representative for the appellant before us, continued the argument for the assessee. At the outset, Shri Majumdar stated that he did not want to press the first two grounds taken in this appeal but wanted to argue only on the issue referred to the Special Bench and reproduced above. He stated that the case of the assessee is supported by the language of Clause (b)(i) as well as Clause (b)(iii) of Section 32A(2). So far as the argument based upon Clause (b)(iii) is concerned, he relied on the arguments already placed before us by Dr. Pal. He concentrated on Clause (b)(i) of Section 32A(2) and urged that the assessee was engaged in the generation of a form of power and so it is entitled to the investment allowance on that ground alone. He stated that this was an additional ground on which the assessee's case is based. He referred to the dictionary meaning of 'power' and pointed out that 'power' means ability to do something. According to him, the dictionary meaning of 'power' also tallies with its scientific meaning, viz., capacity to do work. He stated that the assessee's cold storage generates a lot of very cool air which is used to prevent the potatoes from natural decay. He explained that refrigeration is a complicated scientific process. Quoting from Encyclopaedia Britannica, referred to in the case of CIT v. Gurindcr Singh Karion [1982] 133 ITR 300 (Punj. & Har.) he urged that the registration technology is the result of three distinct areas of science : thermodynamics, heat transfer and fluid flow. By this technology even arctic condition can be produced in a desert. His point was that the assessee was certainly doing something, or in other words, the cold storage plant was engaged in doing some work, viz., in producing a state of coolness by reducing the normal temperature drastically. He stated that this amounted to generation of power. He explained that power, like energy, cannot be produced but it can only be converted from one form to another. The assessee before us used electricity for producing another form of power, viz., a state of coolness which is capable of doing work. The work done was to prevent the potatoes from natural decay. The state of coolness was the other form of power. The use of electricity to produce cool air constituted generation. Hence, he urged that the assessee was rightly allowed investment allowance under Section 32A.
7. Shri N.K. Poddar, the learned representative for the intervener, in the case of Rameshwarpur Cold Storage [IT Appeal No. 2058 (Cal.) of 1985] continued the argument. He stated that electricity is a form of power. The Factories Act, 1948 defines 'power' in Section 2(g) of that Act. According to him, generation of any form of power is the same thing as its production. Referring to the decision in the case of Yamuna Cold Storage (supra), he urged that a cold storage is engaged in a complicated process of modern science and so its building was regarded as factory building. Next, he referred to the decision in the case of Us ha Prints India (P.) Ltd. v. Employees State Insurance Corpn. AIR 1964 Bom. 94. He referred to paragraph 9 of that case for the proposition that heat is a form of energy. He urged that the cold storage was engaged in the production of a form of power and so it fulfilled the condition laid down in Clause (b)(i) of Section 32A(2). Next, he referred to the observations in the case of CIT v. Farrukhabad Cold Storage (P.) Ltd. [1977] 107 ITR 816 (All.) at p. 820 regarding the processing of refrigeration. He stated that a refrigeration plant was engaged in doing something and it was doing the same with the help of cool air produced by it. According to him, the cold storage was engaged in the generation of cooling gas which was used for preserving the potatoes. The cool gas which was produced by the assessee was an article and so the condition laid down in Clause (b)(iii) of Section 32A(2) was also satisfied. In support of his contention that the cool gas which was an article he relied on the decision in the case of H. Anraj v. Government of Tamil Nadu AIR 1986 SC 63 in which it has been held that lottery tickets were goods under the Sales of Goods Act. In this connection, he also referred to the decision in the case of Aluminium Corpn. of India Ltd. v. Coal Board AIR 1959 Cal. 222. Again, he referred to English case of Chesterfield Tube Co. Ltd. v. Thomas (Val. Officer) [1970] 3 (All England) LR 733 for the proposition that conversion of one form of power into another also amounts to production of a form of power. For the meaning of 'article' he referred to Section 151 of the English Factories Act, 1937 and urged that goes is an Article (sic). The upshot of his argument was that the assessee was engaged in the generation of another form of power, viz., the cool air and it was also engaged in the production of the said cool air which was an article and so both the conditions under Clauses (b)(i) and (b)(iii) of Section 32A(2), were satisfied. Finally, he stated that if there are two reasonable interpretations possible while reading the provisions of a statute, the one that is favourable to the assessee should be adopted.
8. Shri B. Sengupta, the learned representative appearing as an intervener for Mahaprabhu Cold Storage (P.) Ltd., urged before us that he relied on the same arguments as were already advanced before us by the provious speakers.
9. Shri B.K. Bagchi, the learned standing counsel for the department, on the other hand, supported the order of the Commissioner. He stated that the case of the assessee was not that it was engaged in the manufacture of any article or thing. The case of the assessee, as argued before us, was that it was engaged in the production of an article or thing. He pointed out that the assessee had argued before the Commissioner in course of the proceedings under Section 263 that it was engaged in the manufacture of an article or thing and, consequently, the case of the assessee now made out before us was a new one. He referred to the decision in the case of Singh Engg. Works (P.) Ltd. v. CIT [1979] 119 ITR 891 (All.) wherein the activities of manufacture, processsing and production have been explained. According to him, production is different from processing. That was a case in which the assessee was engaged in the manufacture of iron bar and rods out of ingots manufactured from scrap in its own electric furnace and also billets purchased from outside. The question was whether the assessee was a priority industry under Section 80-1 of the Act in the sense that it was manufacturing iron and steel (metal) as stated in item (1) of the Sixth Schedule of the Act. It was held that the assessee was indeed engaged in processing or production of iron rods out of billets. Next, he referred to the decision in the case of Farrukhabad Cold Storage (P.) Ltd. v. CIT [1979] 119 ITR 895 (All.) and urged that the Court held in that case that running a cold storage does not amount to engage in the activity of processing of seed. Then, he referred to the decision in the case of Addl. CIT v. Indian Co-operative Union Ltd. [1982] 134 ITR 108 (Delhi) for the proposition that a person engaged in the act of trading cannot be said to be an industrial undertaking. He emphasised the fact that a cold storage does not bring into existence any new product. The potatoes which came out of the cold storage after the lapse of a certain period commercially remain the same commodity. According to him, no processing was done to the potatoes because they did not change in form or size. Commercially, it cannot be said that the potatoes which came out of the cold storage were a different commodity. He referred to certain decisions of the Calcutta Benches of the Tribunal in support of this view. As stated earlier, processing, according to him, does not amount to production. He referred to the decision of the Calcutta High Court in the case of Radha Nagar Cold Storage (P.) Ltd. (supra) for understanding the actual activities that are done in a cold storage. Thus, he urged that the assessee was not engaged in the production of any article or thing. His emphasis was on 'an article or thing' on the ground that no new article or thing was produced nor any processing was done in the cold storage. Coming to the argument based on Clause (b)(i) of Section 32A(2), he stated that the assessee was not engaged in the business of producing and selling cool air. The business of the assessee was to preserve potatoes and not to sell cool air or any other gas alleged to have been produced by the assessee. The assessee was not engaged in the business of generating any form of power as, admittedly, it was engaged merely in the business of preserving potatoes by preventing them from natural decay. In this connection, he referred to the decision in the case of CIT v. Casino (P.) Ltd. [1973] 91 ITR 289 (Ker.) and in particular, to the observations at p. 298 regarding the meaning of 'manufacture'. Hence, he urged that the order of the Commissioner passed under Section 263 deserved to be upheld.
10. Dr. Pal relied that the assessee was engaged in the activity of cold storage which means that some human effort is involved in order to prevent the potatoes from going bad. Any human effort applied on goods amounted to its processing. Since processing amounted to production and since this argument has not been met by Shri B.K. Bagchi, the assessee is entitled to succeed on the authority of Chrestien Mica Industries Ltd.'s case (supra). In this connection, he also referred to the decision of the Tribunal in the case of Union Carbide India Ltd. [It Appeal No. 2038 (Cal.) of 1977-78 dated 19-5-1980] wherein preservation, of fish has been held to be an act of production as it involved processing.
11. Shri Majumdar also relied that conversion of one form of energy into another involved generation' of power and the assessee was engaged in converting electricity into coolness which is nothing but a variation of heat energy. According to him, the assessee was engaged in the production of a thermal state which is used for the preservation of potatoes. He urged that the assessee need not sell cool gas produced by it. It was using the said cool gas for the purpose of furthering its own business of preserving potatoes.
12. We have considered the contentions of the parties as well as the facts on record. The moot question is whether a cold storage which is mainly used for storing potatoes and/or other perishable food stuffs for the purpose of preventing them from natural decay satisfies the conditions laid down in Section 32A(2)(b), so that its plant and machinery qualifies for investment allowance. The Clause reads as under :
(b) any new machinery or plant installed after the 31st day of March, 1976,-
(i) for the purposes of business of generation or distribution of electricity or any other form of power ; or
(ii) in a small-scale industrial undertaking for the purposes of business of manufacture or production of any article or thing ; or
(iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule.
The Clause has three Sub-clauses which are alternative and not cumulative. There being not even a suggestion that the cold storage satisfies the conditions laid down in Clause (b), we have only to consider whether it satisfies conditions laid down in Sub-clause (i) or (iii).
13. The first Clause covers such a plant and machinery which is installed 'for the purpose of business of generation or distribution of electricity or any other form of power'. As held by the Calcutta High Court in the case of Radha Nagar Cold Storage (P.) Ltd. (supra) the function of cold storage is primarily to store food products and prevent them from their natural decay. The potatoes and other foodstuffs which are kept in the cold storage are preserved in the original state and their normal decay is prevented.
13.1 Despite what the learned counsels Shri Majumdar and Shri N.K. Poddar have vehemently urged mainly to show that refrigeration is a complicated scientific process and that being the result of complicated product of modern science, even its building is regarded as factory building, etc., one cannot get away from the fact that a cold storage is a kind of refrigeration on a big scale. Instead of a plastic or steel body as in the case of refrigerators for domestic or even commercial use by chemists, etc, the body of the cold storage could be a building. If one can justifiably say that refrigerator whose function is also the same on a miniature scale, generates electricity or any other form of power, it will certainly be so in the case of a cold storage. To our mind, however, such a suggestion requires to be straightway rejected as an absurd proposition. It is a case of use of electricity for a particular purpose. For instance, one can use electricity for lights, fans, air-conditioners refrigerators, television sets, radia and video, cold storage, plant, etc. It is only the use of the electricity and not even the conversion of it, not to speak of generation of electricity or any other form of power.
13.2 It must be stated in fairness to the counsels that they did not even claim that the cold storage could be said to be engaged in distribution of electricity or any other form of power. For reasons given above, we have already held that the cold storage uses the electricity for a particular purpose, but certainly does not generate electricity or any other form of power.
13.3 Besides, it would not be fair to the Legislature to overlook the fact that the Sub-clause does not simply lay down that machinery or plant installed should be for generation or distribution of electricity or any form of power. It has advisedly used the expression 'for the purpose of business of generation or distribution of electricity or any other form of power'. Assuming for the sake of argument that a cold storage generates electricity or any other form of power, the pertinent question will still remain whether such a generation is for its own use or for the purpose of the business of generation as such. The assessee's business is, admittedly, that of preservation of potatoes and/or other perishable commodities, mostly for others, on hire. We do not think that it needs an argument that generation of power simpliciter and generation of power 'for the purpose of business of generation of power' are two different concepts. For instance, a factory may have its own generator which it makes use of when there is load-shedding. It will certainly be a case of generation of electricity. However, we have our doubts, if it could be said that the generation of electricity in such a case would also be for the purpose of business of generation of electricity. From whatever angle we consider, we have to hold that cold storage does not satisfy the conditions laid down in Sub-clause (i) above.
14. Now we come to Sub-clause (iii). Here again, the Sub-cluase is prefixed with the expression 'for the purpose of business of. The next condition is that the plant and machinery installed in the cold storage must be for the construction, manufacture or production of an article or thing. Nobody has even suggested that the cold storage is engaged in the construction of an article or thing. It could not also be said that in view of the Supreme Court decision in the case of Delhi Clo th & General Mills Co. Ltd. (supra) that a cold storage can be said to be engaged in the manufacture of an article or thing. In fact, Dr. Pal had, it may be stated, fairly admitted that his case is not that of a cold storage manufacturing an article or thing.
On the basis of the Calcutta High Court decision in the case of Radha Nagar Cold Storage (P.) Ltd. (supra), it was urged by Dr. Pal that the cold storage is engaged in the processing of goods (in this case, potatoes). Placing then reliance on the Supreme Court decision in the case of Chrestien Mica Industries Ltd. (supra) it was submitted that there is not much of a difference between the processing and production. In other words, if potatoes can be said to be processed, they can be said to be produced. We are afraid, though ingenious, the argument does not hold water. Firstly, the provisions involved in the Supreme Court's case were those of the Bihar Sales Tax Act, which are not identical with the provisions we are concerned herein. Secondly, the facts in that case were that the assessee therein was not simply breaking the crude mica into split mica which is a commercial commodity. It was carrying on mica mining operations by which crude mica was taken out of the mines and, thereafter, it was processing the same into split mica which is a commercial commodity. The Supreme Court's observations have, thus, to be read in the context of the entire activity of the assessee and not merely confined to the breaking/processing of crude mica into split mica. The Allahabad High Court decision in the case of Singh Engg. Works (P.) Ltd. (supra) supports the view we are taking in this case at least indirectly. Under the circumstances, we are not inclined to accept that the cold storage produces an article or a thing. Mere fact that there would be some qualitative difference in the potatoes after they are taken out of the cold storage does not make them a different article or thing. This is again clear from the above Calcutta High Court decision in which Justice Sabyasachi Mukharji, as he then was, observed as under :
... That, in our opinion, would be processing the goods, that is to say, preservation applying a method to the goods whereby the goods are prevented from taking its normal course. Therefore, looking from a broad point of view, in the light of the definition provided in the several dictionaries to which we have referred, it appears to us, that in the context of the present statute, which has used the expression 'processing' in contradistinction or differently from the expression 'manufacture' the assessce-company was engaged in the act of processing the goods in terms of the Finance Act at the relevant time. . . . (p. 71) It may not be out of place to mention that the Court in that case repelled the argument that because potatoes remained potatoes, there can be no processing involved as such. This is what his Lordship has further stated :
. . . The temperature in the cold storage, admittedly, was regulated by the use of machinery. Thus, the mere fact that the potatoes themselves which were kept in the cold storage, did not undergo any transformation and remained static, did not by itself mean that they were not subjected to any process at all during the period of storage. Processing of goods need not lead to manufacture of a new article. . . .(p. 71) Having regard to the above discussion, we are inclined to hold that a cold storage does not satisfy the conditions laid down in Section 32A(2)(b) and, therefore, its plant and machinery does not qualify for investment allowance.
15. Before concluding, we would like to observe that the other decisions relied upon by the parties, such as, Addl. CITv. Farrukhabad Cold Storage (P.) Ltd. [1977] 107 ITR 816 (All.), Farrukhabad Cold Storage (P.) Ltd. v. CIT [1979] 119 ITR 895 (All.), the Bombay High Court decision in the case of Usha Prints India (P.) Ltd. (supra), the Calcutta High Court decision in the case of Aluminium Corpn. of India Ltd. (supra), the Supreme Court decision in the case of H. Anraj (supra), the Delhi High Court decision in the case of Indian Co-operative Union Ltd. (supra), the Kerala High Court decision in the case of Casino (P.) Ltd. (supra) and Chesterfield Tube Co. Ltd.'s case (supra), are not applicable to the facts of this case for the following reasons.
The question involved in the case of Addl. CITv. Farrukhabad Cold Storage (P.) Ltd. [1977] 107 ITR 816 (All.) has been whether a cold storage is an 'industrial company' as defined in Section 2(1)(d) of the Finance Acts of 1966 and 1967. While accepting the claim that the assessee is an 'industrial company' the Court has specifically observed that processing of goods need not lead to manufacture of a new article.
The other decision of the Allahabad High Court in the case of Farrukhabad Cold Storage (P.) Ltd. v. CIT [1979] 119 ITR 895 was concerned with the definition of 'priority industry' and the claim was rejected by observing that the benefit of Section 80-1 could accrue to a company which was engaged in the production of processed seeds and that processing of seeds is different from the keeping of potatoes in a cold storage. The decision was rendered on the basis of a finding that there was no evidence to show that the assessee was keeping potato tubers for seed purposes. The above two Allahabad High Court decisions have, thus, no application in this case.
The issue involved before the Delhi High Court in Indian Co-operative Union Ltd.'s case (supra) has been regarding the interpretation of the expression 'cottage industry'.
The issue before the Kerala High Court in the case of Casino (P.) Ltd. (supra) also related to the expression 'industrial company' under Section 2(6)(d) of the Finance Act, 1968. It was held that a hotel was primarily a trading company and preparation of food was not manufacture or processing of goods.
In the English case of Chesterfield Tube Co. Ltd. (supra) the issue is apparently similar to the one before us in the sense that the expression involved therein has been 'generation of power'. However, as stated by us, in the earlier paragraphs, we are concerned in this case not merely with the expression 'generation of power' but also with the expression 'for the purpose of business of generation of power'. Therefore, this case is also distinguishable.
The decision of the Calcutta High Court in Aluminium Corpn. of India Ltd.'s case (supra), it appears to us, has no bearing on the facts of the case before us. The Bombay High Court decision in Usha Prints India (P.) Ltd.'s case (supra) deals with the word 'power' as used in Clause (g) of Section 2 of the Finance Act. The Clause has a specific definition in that Act.
In the Supreme Court decision in the case of H. Anraj (supra) the question involved was whether the lottery tickets were goods liable to sales tax under the Tamil Nadu General Sales Tax Act, 1959. After referring to the inclusive definition of the word 'goods' in Section 2(d) their Lordships have come to the conclusion that it is a movable property and is not actionable claim and is, therefore, goods. We fail to appreciate how this decision is relevant in the case before us.
16. In the result, the appeal is dismissed.