GUJARAT URJA VIKAS NIGAM LTD. Vs. EMCO LTD. & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1220 of 2015, Judgment Date: Feb 02, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1220 OF 2015
Gujarat Urja Vikas Nigam Limited … Appellant
Versus
EMCO Limited & Another … Respondents
J U D G M E N T
Chelameswar, J.
1. The 2nd respondent herein, the Gujarat Electricity Regulatory
Commission is a body constituted under Section 82 of the Electricity Act,
2003 (hereinafter referred to as “the Act”). In exercise of its statutory
powers under Sections 61(h), 62(1)(a) and 86(1)(e) of the Act the 2nd
respondent issued Order No.2 of 2010 dated 29.01.2010 (hereinafter referred
to as the “1st Tariff Order”) determining the tariff for procurement of
power by the Distribution Licensees in Gujarat from Solar Energy
Projects[1]. The said order was issued after an elaborate consideration
of the various relevant factors including the policy guidelines of the
State of Gujarat and Union of India. Under the said order, tariff for
procurement of electricity generated by PROJECTS employing Solar
Photovoltaic (SPV) Technology was fixed at Rs.15 per kWh for the initial 12
years starting from the date of commercial operation of the project and
Rs.5 per kWh from the 13th year to 25th year. The said order was declared
to have had come into force w.e.f. 29.01.2010. Various financial and
operational parameters taken into consideration for determining the tariff
are mentioned at para 4 of the said Order[2]. One of the factors taken
into consideration is the ‘Rate of Depreciation’. It is specified at para
5 of the Order that the tariff fixed under the said Order “took into
account the benefit of accelerated depreciation under the Income Tax Act
and Rules”. It is further declared that “for a project that does not get
such benefit, the Commission would, on a petition in that respect,
determine a separate tariff taking into account all the relevant facts.”
2. The 1st respondent produces electric energy (power) from one of the
PROJECTS. The appellant and 1st respondent[3] entered into a Power Purchase
Agreement (PPA) dated 09.12.2010 for sale and purchase of electricity from
the 5 MW project to be established by the 1st respondent in Surendra Nagar
district of Gujarat. The provisions relevant for the dispute in the
present appeal are Clauses 5.1 & 5.2,
“Article 5: Rates and Charges
5.1 Monthly Energy Charges: GUVNL shall pay to the Power Producer every
month for Scheduled Energy/Energy injected as certified in the monthly SEA
by SLDC the amounts (the “Tariff”) set forth in Article 5.2.
5.2 GUVNL shall pay the fixed tariff mentioned hereunder for the period
of 25 years for all the Scheduled Energy/Energy injected as certified in
the monthly SEA by SLDC. The tariff is determined by Hon’ble Commission
vide Tariff Order for Solar based power project dated 29.01.2010.
Tariff for Photovoltaic Project: Rs.15/kWh for First 12 years
and
Thereafter Rs.5/kWh from 13th Year
To 25th Year.
Above tariff shall apply for solar projects commissioned on or before 31st
December 2011. In case, commissioning of Solar Power Project is delayed
beyond 31st December 2011, GUVNL shall pay the tariff as determined by
Hon’ble GERC for Solar Projects effective on the date of commissioning of
solar power project or above mentioned tariff, whichever is lower.”
and Clauses 12.8[4] & 12.10[5] of the said PPA.
3. However, after entering into the abovementioned PPA, respondent no.1
decided to change the PROJECT’S location. Therefore, a Supplemental
Agreement was entered into between the appellant and respondent no.1 on
07.05.2011 making appropriate and necessary modifications to the PPA dated
09.12.2010. However, Articles 5.1 and 5.2 of the original PPA remained
unaltered.
4. 2nd respondent passed another order dated 27.01.2012 (hereinafter
referred to as the “2nd Tariff Order”) determining the tariff applicable to
the PROJECTS to be commissioned on or after 29.01.2012. The tariff fixed
under the said order for the PROJECTS generating electrical Energy through
Solar Photovoltaic (SPV) Technology “availing the benefit of accelerated
depreciation under the Income Tax Act” is less favourable to the power
producers and the tariff payable by the appellant to the power producers
which do not avail “the benefit of accelerated depreciation” under the
Income-tax Act is more favourable to such power producers.
5. The 1st respondent commissioned its PROJECT only on 2.3.2012, i.e.,
beyond the “control period[6]” of tariff specified under the 1st Tariff
Order. The said “control period” ended on 28.01.2012. The 1st respondent
admittedly did not avail the accelerated depreciation under Section 32 of
the Income-tax Act.
6. The 1st respondent, therefore, filed a petition no.1270 of 2012
before the State Commission invoking Section 86(1)(f) of the Act praying
“(A) This Hon’ble Commission be pleased to hold and declare that the
Petitioner is entitled to claim the tariff applicable to megawatt scale
solar photovoltaic projects not availing of accelerated depreciation as per
tariff order dated 27.1.2012; and (B) This Hon’ble Commission be pleased to
quash and set aside the decision of the Respondent taken in letters dated
20.4.2012, 22.6.2012 and 20.11.2012 for denying the tariff applicable to
megawatt scale solar photovoltaic projects not availing of accelerated
depreciation as per tariff order dated 27.1.2012 to the Petitioner and
direct the Respondent to forthwith make payment of a sum of Rs. 59,50,260/-
to the Petitioner being the differential amount of invoices which is unpaid
by the Respondent;”
7. The 2nd respondent by its order dated 08.08.2013 held that the 1st
respondent is entitled for the benefit of the tariff specified in the 2nd
Tariff Order dated 27.01.2012[7]. The 2nd respondent also held that the
benefit of its adjudicatory order should not only go to the 1st respondent
but also to others who have commissioned their PROJECTS subsequent to the
2nd Tariff Order.
Para 8. Before parting with the judgment, we would like to observe that the
issue raised in the present petition is in fact on interpretation of the
Order No.1 of 2012 dated 27.01.2012; and hence the decision in this case
would impact not only the petitioner, but also other developers who have
either commissioned or are likely to commission their projects within the
control period of the said order. Some of such developers might not avail
the benefits of accelerated depreciation and it would be unfair if all of
them are required to file separate petitions to seek justice, especially
when we have already decided that in the Order No.1 of 2012, the Commission
has determined separate tariff for such projects. We, therefore, in the
interest of justice and fairness, decide that the present order shall be
applicable in all such cases. The onus of proof regarding non-availing of
accelerated depreciation shall, however, be on such developers.
8. Aggrieved by the order dated 08.08.2013, the appellant herein
preferred an appeal before the Appellate Tribunal for Electricity
(hereinafter referred to as “the Appellate Tribunal”), constituted under
Section 110 of the Act invoking its jurisdiction under Section 111 of the
Act.
9. By the impugned order dated 20.11.2014, the Appellate Tribunal
confirmed the order of the 2nd respondent.
“Para 62. Summary of Findings:
The PPA dated 19.12.2010 entered into between the Appellant and the
Respondent No.1 provided for tariff as determined by the State Commission
vide order dated 30.1.2010, viz. Rs.15 per kWh for first 12 years and
thereafter Rs.5 per kWh from 13th year to 25th year, provided the Solar
Project is commissioned on or before 31st December 2011. However, in case
commissioning of the project is delayed beyond 31st December, 2011, the
Appellant has to pay the tariff as determined by the State Commission
effective on the date of commissioning of Solar Power Project. The Solar
Project of the Respondent No.1 was commissioned on 2.3.2012. Therefore,
the tariff as determined by the State Commission by the Order dated
27.1.2012 for the next control period from 29.1.2012 to 31.3.2015 will be
applicable to the Respondent No.1.
In order dated 27.1.2012, the State Commission has determined the tariff
for Solar Project availing accelerated depreciation and without availing
the accelerated depreciation. As the Respondent No.1 has not availed the
accelerated depreciation, the tariff determined without accelerated
depreciation in the order dated 27.1.2012 will be applicable in terms of
the PPA and the tariff order of the State Commission dated 27.1.2012.
Complete reading of the Tariff Order dated 27.1.2012 clearly indicates that
the State Commission has determined tariff for both, the projects availing
accelerated depreciation and those not availing accelerated depreciation.
The order gives a choice to the Solar Developer to avail or not to avail
the benefit of accelerated depreciation.”
Hence, the instant appeal under Section 125 of the Act.
10. Both the 1st Tariff Order and the 2nd Tariff Order issued by the 2nd
respondent deal with the tariff payable to the producers of power. The
distinction between both the tariff orders insofar as it is relevant for
the purpose of the present case is that:
(I) 1st Tariff Order fixed the tariff for the PROJECTS which get the
“benefit of accelerated depreciation” under Section 32 of the Income Tax
Act.
“Based on the various parameters as discussed above, the levelised tariff
including RoE of Solar PV power generation, using a discounting rate of
10.19% works out to Rs. 12.54 per kWh and levelised tariff using the same
discounting factor for Solar Thermal Power generation works out to Rs. 9.29
per kWh. However, the Commission feels that it would be appropriate to
determine tariff for two sub-periods: 12 years and 13 years instead of the
same tariff for 25 years. Hence, the Commission determines the tariff for
generation of electricity from Solar PV Power Project at Rs. 15 per kWh for
the initial 12 (twelve) years starting from the date of Commercial
operation of the project and Rs. 5 per kWh from the 13th (Thirteenth) year
to 25th (twenty fifth) year. The Commission also determines the tariff
for generation of electricity from Solar Thermal Power project at Rs. 11
per kWh for the initial 12 (twelve) years starting from the date of
Commercial operation of the project and Rs. 4.00 per kWh from the 13th
(Thirteenth) year to 25th (twenty fifth) year.
The above tariffs take into account the benefit of accelerated depreciation
under the Income Tax Act and Rules. For a project that does not get such
benefit, the Commission would, on a petition in that respect, determine a
separate tariff taking into account all the relevant facts.”
(II) 2nd Tariff Order, on the other hand, fixed the tariff for both the
classes of PROJECTS[8] i.e. those which “avail” the “benefit of accelerated
depreciation” (under Section 32 of the Income Tax Act) and those which do
not “avail” the “benefit of accelerated depreciation”.
“Based on these technical and financial parameters, the levelized tariff
including return on equity for megawatt-scale solar photovoltaic power
projects availing accelerated depreciation is calculated to be Rs. 9.28 per
kWh, while the tariff for similar projects not availing accelerated
depreciation is calculated to be Rs. 10.37 per kWh. The Commission also
decides to determine the tariff for two sub-periods. For megawatt-scale
photovoltaic projects availing accelerated depreciation, the tariff for the
first 12 years shall be Rs. 9.98 per kWh and for the subsequent 13 years
shall be Rs. 7 per kWh. Similarly, for megawatt-scale photovoltaic
projects not availing accelerated depreciation, the tariff for the first 12
years shall be Rs. 11.25 per kWh and for the subsequent 13 years shall be
Rs. 7.50 per kWh.”
11. The case of the 1st respondent is that notwithstanding the fact that
it entered into a PPA during the “control period” specified in the 1st
tariff order, it is not obliged to sell power to the appellant for the
price specified in Article 5.2 of the PPA and is legally entitled to seek
(from the 2nd respondent) fixation of a separate tariff. It is the further
case of the 1st respondent that under the PPA, the appellant is under an
obligation to procure the power from the 1st respondent for a period of 25
years if the 1st respondent commences the generation of power within the
“control period” and is also obliged to pay for the power procured by it at
the rates specified in Article 5.2 of the PPA. But the obligation of the
1st respondent to sell power generated by it to the appellant at the rates
specified in Article 5.2 of the PPA comes into existence only on the
happening of the two contingencies, i.e., the 1st respondent (i) commencing
the generation of power within the “control period” stipulated under the
1st Tariff Order; and (ii) choosing to avail the “benefit of accelerated
depreciation” under the Income Tax Act. According to the 1st respondent,
the stipulation under the 1st Tariff Order that the tariff fixed thereunder
is not applicable to those PROJECTS which “does not get such benefit, the
Commission would on a petition in that respect determine a separate tariff
taking into account all the relevant facts from not” would only imply that
tariff fixed under the 1st Tariff Order is not applicable to those
PROJECTS/power producers which do not avail the “benefit of accelerated
depreciation” under the Income Tax Act.
12. On the other hand, the case of the appellants throughout has been
that the 1st respondent clearly knew when it entered into the PPA that the
tariff propounded under the 1st Tariff Order is applicable only for those
PROJECTS which avail the “benefit of accelerated depreciation” under the
Income Tax Act. If the first respondent did not intend to avail the
“benefit of the accelerated depreciation” under the Income Tax Act, it
ought not to have entered into the PPA without first seeking the
determination of the tariff by the 2nd respondent. Having chosen to enter
into a PPA, the 1st respondent cannot decide not to avail the “benefit of
accelerated depreciation” at a later point of time i.e. beyond the control
period prescribed under the 1st Tariff Order and claim the benefit of a
more advantageous tariff fixed in the 2nd Tariff Order in favour of the
PROJECTS which do not avail the “benefit of accelerated depreciation”.
13. We have already noticed that the 1st respondent did not commence
generation of power within “control period” stipulated under the 1st Tariff
Order and also did not avail the “benefit of the accelerated depreciation”
under the Income Tax Act.
14. It is admitted on all hands that the “benefit of accelerated
depreciation” mentioned in the 1st Tariff Order and the PPA is the
stipulation contained in Section 32 (1)(i) of the Income Tax Act read with
Rule 5(1A) of the Income Tax Rules. They provide for the method and manner
in which depreciation of the assets of an assessee is to be calculated.
Section 32 of the Income Tax Act (insofar as relevant) stipulates as
follows:-
“32(1) in respect of depreciation of –
buildings, machinery, plant or furniture, being tangible assets;
know-how, patents, copyrights, trade marks, licences, franchises or any
other business or commercial rights of similar nature, being intangible
assets acquired on or after the 1st day of April, 1998.
owned, wholly or partly, by the assessee and used for the purposes of the
business or profession, the following deductions shall be allowed –
in the case of assets of an undertaking engaged in generation or generation
and distribution of power, such percentage on the actual cost thereof to
the assessee as may be prescribed.”
The prescription contemplated is found in Rule 5(1A) of the Income Tax
Rules, 1962 which reads as follows:-
“(1A) The allowance under clause (i) of sub-section (1) of section 32 of
the Act in respect of depreciation of assets acquired on or after 1st day
of April, 1997 shall be calculated at the percentage specified in the
second column of the Table in Appendix IA of these rules on the actual cost
thereof to the assessee as are used for the purposes of the business of the
assessee at any time during the previous year:”
Under the second proviso to the said Rule, it is further provided;
“Provided further that the undertaking specified in clause (i) of sub-
section (1) of section 32 of the Act may, instead of the depreciation
specified in Appendix IA, at its option, be allowed depreciation under sub-
rule (1) read with Appendix I, if such option is exercised before the due
date for furnishing the return of income under sub-section (1) of section
139 of the Act,
for the assessment year 1998-99, in the case of an undertaking which began
to generate power prior to 1st day of April, 1997; and
for the assessment year relevant to the previous year in which it begins to
generate power, in case of any other undertaking:”
15. It can be seen from the above extracted proviso, an undertaking
engaged in generation of power has an option to claim depreciation on its
assets in accordance with the scheme under Section 32(1)(i) of the Income
Tax Act. Such an option could be exercised at the relevant point of time
as indicated in the said proviso.
16. The argument of the first respondent throughout has been that the
stipulation in the 1st Tariff Order that “a project that does not get such
a benefit….” only means that the tariff propounded under the said order
does not apply to PROJECTS which do not choose to exercise the option to be
governed by the scheme under Section 32 of the Income Tax Act. On the
other hand, the argument by the appellant throughout has been that such a
clause only implies that the tariff under the 1st Tariff Order is not
applicable to those power generating PROJECTS which by operation of law
(but not because of the violation of the assessees) are not entitled to
claim the benefit of the scheme under Section 32(1)(i) of the Income Tax
Act.
17. We do not wish to examine the question whether there is a possibility
under the Income Tax Act for any PROJECT/ undertaking engaged in the
generation of power[9] not to fall within the operation of Section 32(1)(i)
apart from those cases where the “undertaking” chooses not to be governed
by such regime. Neither of the parties made the submission that in law
there is a possibility of a power project not getting the benefit of the
accelerated depreciation.
18. Assuming for the sake of argument that in law such a possibility
exists, the construction such as the one sought to be placed on the
relevant portion of para 5 of the 1st Tariff Order by the appellant cannot
be accepted because it would be inherently illogical. At the cost of
repetition, we reproduce that portion of the para 5 of the 1st Tariff
Order:
The above tariffs take into account the benefit of accelerated depreciation
under the Income Tax Act and Rules. For a project that does not get such
benefit, the Commission would, on a petition in that respect, determine a
separate tariff taking into account all the relevant facts.”
It is not the case of either the appellant or the 2nd respondent that
Section 32(1)(i) of the Income Tax Act does not apply to some PROJECTS.
The tenor of the statement is clear. The 2nd respondent proposed the
tariff for all classes of PROJECTS taking into account that all of them
would be entitled to claim the ‘benefit of accelerated depreciation’ under
Section 32 of Income Tax Act. The 2nd respondent must be presumed to have
known at the time of propounding the 1st tariff order that the Income Tax
Act and the Rules thereunder provide an option to the assessee (producer of
power) either to claim or not the ‘benefit of accelerated depreciation’.
Hence, the stipulation. The submission of the appellant regarding the
construction of the above extracted clause of the 1st Tariff Order is
rejected.
19. However, that does not solve the problem on hand. Two questions
still remain to be examined, (i) Even if the interpretation placed by the
1st respondent on the above extracted portion of para 5 of the 1st Tariff
Order is correct (in fact it would be the logical consequence of the
rejection of the submission of the appellant), would the 1st respondent
have a right to exercise the choice not to avail the ‘benefit of
accelerated depreciation’ after signing the PPA? (ii) Whether the 1st
respondent’s right under the Income Tax Act to make such a choice could be
so exercised which would result in a situation whereby the appellant would
be obliged under the PPA to purchase the power generated by the 1st
respondent for a period of 25 years without knowing the price at which the
1st respondent would be obliged to supply the power?
20. These questions were raised and argued before the 2nd respondent but
unfortunately the issue was unnecessarily complicated by the arguments
based on promissory estoppel[10]. After noticing the issue, the appellate
tribunal elaborately extracted from the order of the 2nd respondent dated
8.8.2013. The relevant part of which reads as under:
“6.16. However, it is also a fact that the parties to the above PPA
agreed in the second para of the Article 5.2 of the PPA that if the project
of the Petitioner is not commissioned during the control period of the
Order No.2 of 2010 dated 29.1.2010, either the tariff that was agreed in
Article 5.2 of the PPA or the tariff determined by the Commission as on the
date of commissioning of the project, whichever is lower, will be
applicable. Thus, the aforesaid PPA recognizes the two tariffs applicable
to the Petitioner case. As the Petitioner’s project was commissioned on
2.3.2012, it falls under the control period of Order No.1 of 2012 dated
27.01.2012, for tariff purposes, relevant para of which is reproduced
below:
xxx xxx xxx xxx
The above table reveals that both the tariffs i.e. one for the project
availing the benefit of Accelerated Depreciation and another for the
project not availing the benefit of accelerated Depreciation is allowed by
the Commission for the projects commissioned during the control period of
29.01.2012 to 31.03.2015. Such being the case, on the cogent reading of
the Article 5.2 of the PPA and the tariff Order No.1 of 2012 dated
27.01.2012, we are of the view that the Principle of Promissory Estoppel is
not applicable in the present case.”
[Extracted portion of the order of the 2nd respondent in the impugned
order]
It can be seen from the above that the 2nd respondent noticed the
stipulation in the PPA that if the 1st respondent does not commission the
PROJECT during the control period specified under the 1st Tariff Order
“….either the tariff that was agreed … or the tariff determined by the
Commission … whichever is lower will be applicable but reached a conclusion
that ……. on a cogent reading of the Article 5.2 ……. and the tariff order
No.1 of 2012 dated 27.01.2012, we are of the view that the Principle of
Promissory Estoppel is not applicable in the present case.” The 2nd
respondent noticed the stipulation of the PPA regarding the applicable
tariff in the event of the 1st respondent not commissioning the PROJECT
would be the lower of the two tariffs. Without examining the legal effect
of such stipulation, the 2nd respondent went into the analysis of the 2nd
Tariff Order which is neither necessary (nor called for) for determining
the legal effect of the stipulation of the PPA.
21. The appellate Tribunal after noticing the issue and the elaborate
consideration bestowed on it by the 2nd respondent did not record in the
impugned order its view regarding the correctness of the above extracted
conclusion of the 2nd respondent. We can only presume that the appellate
tribunal approved the reasoning and the conclusion of the 2nd respondent
since it did not reverse the 2nd respondent’s order.
22. One of the submissions of the 1st respondent which was accepted by
the Tribunal is that the issue is covered by an earlier judgment of the
Tribunal in Appeal No.111 of 2012 dated 30th April, 2013[11] pertaining to
Rasna Marketing Services LLP v. Gujarat Urja Vikas Nigam Limited & Another
(hereinafter referred to as “RASNA case”).
23. The facts of RASNA case are: that Rasna, a power producer, entered
into a power purchase agreement on 8.12.2010 with the appellant (GUVNL)
herein. Under the said PPA, Rasna agreed to sell power at the rate
prescribed by the 1st Tariff Order. Eventually, Rasna commissioned its
power plant on 31.12.2011 within the control period stipulated in the 1st
Tariff Order. However, Rasna filed a petition before the 2nd respondent
praying for determination of specific tariff for the sale of power on the
ground that Rasna would not be availing accelerated depreciation benefits.
The said application of Rasna was resisted by the GUVNL. A preliminary
objection that such an application is not maintainable was raised by GUVNL
on the ground that Rasna having received the benefit of the PPA and also
the payment pursuant thereto is debarred from seeking the relief such as
the one sought by it. The 2nd respondent overruled the preliminary
objection. Therefore, GUVNL went before the appellate tribunal. Dealing
with the said appeal, the Tribunal took note of the categoric objection
raised by the GUVNL that the application for determination of a separate
tariff by Rasna could not be entertained after Rasna had signed the
PPA.[12]
24. The Tribunal rejected the said objection of GUVNL.[13] In substance,
the conclusion of the Tribunal in RASNA case was that the execution of the
PPA does not put any embargo on the right of Rasna to seek the
determination of a specific tariff. The tribunal’s reasons for such a
conclusion are that (i) the 1st Tariff Order recognises the right of the
power producers like Rasna either to opt for or not to opt for the benefit
of accelerated depreciation; (ii) there is no specific stipulation in the
Tariff Order that the power producers like Rasna which do not wish to avail
the benefit of accelerated depreciation should intimate the same to the
appellant before entering into the PPA; (iii) nor there is any obligation
under any law by which Rasna is bound to disclose the fact before signing
the PPA that it would not avail the benefit of accelerated depreciation.
25. Relying on the judgment of the RASNA case, the Tribunal recorded a
conclusion in the impugned order:
“32. In the present case, the Solar Project could not be commissioned
during the control period specified in the State Commission’s Order dated
29.1.2010. Therefore, in terms of the PPA, the Respondent No.1 is entitled
to tariff as determined by the State Commission in the subsequent order
dated 27.1.2012.”
We do not wish to make any comment on the correctness of the order of the
tribunal in RASNA case. We are not sure whether the order has become
final. But we are of the opinion that the reliance by the tribunal in the
instant case on RASNA case order is clearly wrong. In RASNA case, the
prayer was for the determination of a separate tariff applicable to it. In
the instant case, the prayer of the 1st respondent is not for fixation of
separate tariff but for a declaration that the 1st respondent is entitled
for claiming the benefits of the tariff determined under the 2nd Tariff
Order.
26. Apart from that, the conclusion of the Tribunal in the instant case
is wrong. First of all the PPA does not give any option to the respondent
to opt out of the terms of the PPA. It only visualises a possibility of
the producer not commissioning its PROJECT within the “control period”
stipulated under the 1st Tariff Order and provides that in such an
eventuality what should be the tariff applicable to the sale of power by
the 1st respondent. Secondly, the PPA does not ‘entitle’ the 1st
respondent to the “tariff as determined by the” 2nd respondent by the 2nd
Tariff Order. On the other hand, the PPA clearly stipulates that in such
an eventuality;
“Above tariff shall apply for solar projects commissioned on or before 31st
December 2011. In case, commissioning of Solar Power Project is delayed
beyond 31st December 2011, GUVNL shall pay the tariff as determined by
Hon’ble GERC for Solar Projects effective on the date of commissioning of
solar power project or above mentioned tariff, whichever is lower.”
The right of the 1st respondent not to avail the “benefit of accelerated
depreciation” flows from the Income Tax Act. It is only the 1st Tariff
Order which gives an option to the 1st respondent (for that matter to all
the power producers who are similarly situated as the 1st respondent) not
to sell the power produced by it at the price specified in the 1st Tariff
Order but seek the determination of a separate tariff. Such a right and
option is available to the power producers only in one contingency i.e.,
that they are not inclined to avail the ‘benefit of accelerated
depreciation’.
27. The real question is: what is the point of time at which the power
producer can exercise such right to seek the determination of a separate
tariff.
28. The Income Tax Act gives an option to the producers of power either
to avail the ‘benefit of the accelerated depreciation’ or not. It also
specifies the point of time at which such an option could be exercised.
The right to exercise such option at a point of time specified in the 2nd
proviso to Rule 5(1A) is limited only for the purpose of availing the
benefits flowing from the Income Tax Act. The PPA does not make any
reference to the “benefits of accelerated depreciation”. It simply
specified the price to be paid by the appellant for the power purchased by
it from the 1st respondent. The appellant determined the said price after
taking into consideration various factors. One of them happened to be that
the Power Producers are entitled to certain ‘benefits’ under the Income Tax
Act. The availability of such ‘benefit’ is dependent upon the option of
the power producers. Though the 1st Tariff Order employs the expression
‘benefit’ in the context of the AD Scheme under Section 32 of the IT Act,
the applicability of the provision to a power producer depends upon the
choice of the power producer. Whether the availability of the AD Scheme is
beneficial to the power producer or not in a given case depends on various
factors the details of which we do not propose to examine. It is for the
power producer to make an assessment whether the availing of the AD is
beneficial or not will take a decision if the scheme under Section 32 IT
Act should be availed or not.
29. But the availability of such an option to the power producer for the
purpose of the assessment of income under the IT Act does not relieve the
power producer of the contractual obligations incurred under the PPA. No
doubt that the 1st respondent as a power producer has the freedom of
contract either to accept the price offered by the appellant or not before
the PPA was entered into. But such freedom is extinguished after the PPA
is entered into.
30. The 1st respondent knowing fully well entered into the PPA in
question which expressly stipulated under Article 5.2 that “the tariff is
determined by Hon’ble Commission vide tariff order for solar based power
project dated 29.1.2010”
31. Apart from that both the respondent No. 2 and the appellate tribunal
failed to notice and the 1st respondent conveniently ignored one crucial
condition of the PPA contained in the last sentence of para 5.2 of the PPA:-
“In case, commissioning of Solar Power Project is delayed beyond 31st
December 2011, GUVNL shall pay the tariff as determined by Hon’ble GERC for
Solar Projects effective on the date of commissioning of solar power
project or above mentioned tariff, whichever is lower.”
The said stipulation clearly envisaged a situation where notwithstanding
the contract between the parties (the PPA), there is a possibility of the
first respondent not being able to commence the generation of electricity
within the “control period” stipulated in the 1st tariff order. It also
visualised that for the subsequent control period, the tariffs payable to a
PROJECTS/power producers (similarly situated as the first respondent) could
be different. In recognition of the said two factors, the PPA clearly
stipulated that in such a situation, the 1st respondent would be entitled
only for lower of the two tariffs. Unfortunately, the said stipulation is
totally overlooked by the second respondent and the appellate tribunal.
There is no whisper about the said stipulation in either of the orders.
32. The 1st respondent created enough confusion. While on one hand the
1st respondent asserted a right to seek determination of a separate tariff
independent of the tariff fixed under the 1st Tariff Order in view of the
stipulation contained in the 1st Tariff Order that “for a project that does
not get such benefit, the Commission would, on a petition in that respect,
determine a separate tariff taking into account all the relevant facts” did
not seek a relief before the 2nd respondent to determine a separate tariff
but claimed the benefit of the 2nd Tariff Order. Assuming for the sake of
argument that the petition filed by the 1st respondent (1270/2012) is to be
treated as an application for determination of separate tariff which would
be identical with the tariff fixed under the 2nd Tariff Order, whether the
1st respondent would be entitled for such a relief depends, if at all he is
entitled to seek such a determination, on a consideration of “all the
relevant facts” but not by virtue of the operation of the 2nd Tariff Order.
33. For all the above-mentioned reasons, we are of the opinion that the
impugned order cannot be sustained and the same is therefore set aside. As
a consequence, the order of the 2nd respondent dated 8.8.2013, which was
the subject matter of appeal in the impugned order, is also set aside.
34. At this juncture, we need to mention that the learned counsel for the
respondents very vehemently argued that the instant appeal is not
maintainable because Section 125 of the Electricity Act mandates that an
appeal to this Court under the said provision is maintainable only where
there is a substantial question of law and the parties seeking to invoke
the appellate jurisdiction of this Court must clearly indicate as to what
is the substantial question of law that arises for consideration of this
Court. According to the respondents, the memorandum of appeal does not
disclose any substantial question of law which arises for the consideration
of this Court
35. We do not find any substance in the submission. We believe that
debate in the foregoing paragraphs of this judgment revolved around more
than one substantial question of law justifying the exercise of the
appellate jurisdiction of this Court. The appeal is allowed with costs
quantified at Rs. 2 lakhs payable by the 1st respondent herein. The interim
orders granted earlier stand dissolved. The amounts, if any, paid by the
appellant pursuant to the interim orders of this Court shall be adjusted
towards the payments due to the 1st respondent for future procurement of
power by the appellant in such manner as the appellant deems fit and
proper.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Abhay Manohar Sapre)
New Delhi;
February 2, 2016
-----------------------
[1] The Tariff Order uses the term ‘Solar Energy Projects’ and the PPA
uses the term ‘Solar Power Projects’. The terms ‘Solar Power Projects’ and
‘Solar Energy Projects’ are identical. Hereinafter, we use the term
‘PROJECTS’ to denote them.
[2] Para 4. Components of Tariff
The following financial and operational parameters have been
considered while determining the tariff.
Capital cost
Evacuation cost
Operations & Maintenance charges
Debt – Equity Ratio
Loan Tenure
Interest rate on loan
Return on equity
Rate of Depreciation
Interest on Working Capital
Capacity Utilization Factor
Duration of Tariff
Auxiliary Consumption
[3] Described as power producer in the PPA
[4] 12.8 Amendments:
This Agreement shall not be amended, changed, altered, or
modified except by a written instrument duly executed by an authorized
representative of both Parties. However, GUVNL may consider any amendment
or change that the Lenders may require to be made to this Agreement.
[5] 12.10 Entire Agreement, Appendices:
This Agreement constitutes the entire agreement between GUVNL
and the Power Producer, concerning the subject matter hereof. All previous
documents, undertakings, and agreements, whether oral, written, or
otherwise, between the Parties concerning the subject matter hereof are
hereby cancelled and shall be of no further force or effect and shall not
affect or modify any of the terms or obligations set forth in this
Agreement, except as the same may be made part of this Agreement in
accordance with its terms, including the terms of any of the appendices,
attachments or exhibits. The appendices, attachments and exhibits are
hereby made an integral part of this Agreement and shall be fully binding
upon the Parties.
In the event of any inconsistency between the text of the
Articles of this Agreement and the appendices, attachments or exhibits
hereto or in the event of any inconsistency between the provisions and
particulars of one appendix, attachment or exhibit and those of any other
appendix, attachment or exhibit GUVNL and the Power Producer shall consult
to resolve the inconsistency.
[6] Para 7.2 Control Period
The Commission had proposed a control period for this order as the
period from the date of final order of the Commission to 31.12.2011.
Commission’s Ruling-
“It has been observed that the capital cost of the solar power
project might reduce drastically as time elapses. However, since the
gestation period for Solar PV projects is about 6 months and that for Solar
Thermal Projects is 18-24 months, the Commission decides that the control
period for this order will be 2 years.”
[7] Para 7. Considering the above, we decide that the petition
succeeds. We decide that the petitioner’s project, which is not availing
the benefit of Accelerated Depreciation is entitled to the tariff of
Rs.11.25/Unit for the first 12 years of the project and Rs.7.50/Unit for
the subsequent 13 years. The respondent is directed to pay the amount of
difference of Rs.11.25 – Rs.9.98 = 1.27/KWh to the petitioner for the
invoices so far raised by the petitioner and payment of which have already
been made by the respondent. The respondent is further directed that he
shall pay the above tariff now onward also to the petitioner for energy
supplied by him.
[8] There is some dispute between the parties in this regard and the
Appellate Tribunal recorded:-
“36. . The Tariff Order 2012 determines both the tariffs i.e. with
or without accelerated depreciation.”
In our opinion, the conclusion of the Tribunal in this regard is
right. The Tenor of the two tariff orders (relevant portions of which are
extracted above) is too obvious and does not call for any further
explanation to justify the above conclusion of the Appellate Tribunal.
[9] The relevant portion of Section 32 of the Income Tax Act reads as
under:
“….. undertaking engaged in generation …. of power ……..”
The said Section covers not only Solar Power Projects but also all
kinds of Power Projects.
[10] 18. One other issue raised by the Appellant before the State
Commission is that the choice to sell electricity at the tariff with or
without accelerated depreciation was to be exercised by the Developer only
at the relevant time and such a claim made subsequently is barred by the
principles of estoppel.
[11] 29. According to the Respondent, the issue has already been
decided in favour of the Developer in judgment dated 30.4.2013 in Appeal
No.111 of 2012.
31. In the above judgment in Rasna case, the Tribunal decided
that there is no infirmity in the State Commission determining the tariff
for the Solar Power Projects of Rasna Marketing Services Ltd. without
considering the benefit of accelerated depreciation in terms of the Order
No.2 of 2010 dated 29.1.2010. In that case, Rasna Marketing Services Ltd.
had commissioned its project within the Control Period specified in the
State Commission’s order dated 29.1.2010. The order dated 29.1.2010
determined the tariff for Solar Projects with accelerated depreciation but
provided that for a project that does not get the accelerated depreciation
benefit, the Commission on a Petition filed by the Developer would
determine a separate tariff without accelerated depreciation.
[12] 21. The main ground of objection raised by the Appellants before
the State Commission was that Rasna Marketing Services Limited, R-2 could
not be permitted to file the said application after having signed the PPAs
both on 08.12.2010 and 8.6.2011 with the Appellants and such a petition
could be entertained by the State Commission only before the signing of the
PPAs and Rasna Marketing Services Ltd. R-2 having preferred to sign the PPA
as per the tariff order dated 29.1.2010 fixing the generic tariff cannot
take a different stand and maintain the petition for determination of
project specific tariff on the pretext of not availing the accelerated
depreciation benefits.
[13] 22.(ii) It can not be contended that the subsequent execution of
PPA would in any manner put an embargo on the jurisdiction of the State
Commission for such a specific tariff determination especially when the PPA
itself recognised the fact that the tariff shall be as per the order No.2
of 2010 dated 29.01.2010 and particularly when the said order also
recognised the right of the developers who are not willing to get the
benefit of accelerated depreciation to approach the State Commission for
determining the specific tariff for those projects.
(iii) According to the Appellants, if Rasna Marketing Services LL (R-
2) did not want to avail accelerated depreciation benefits, the same should
have been intimated to the Appellants even before signing of the PPAs.
This contention is not tenable because there is no such reservation either
in the tariff order No.2 of 2010 or in the PPA entered into between the
parties.
(iv) Rasna Marketing Services LLP (R-2) is not mandated under any
provision of law to disclose to the Appellants that it would not be
availing the benefit of accelerated depreciation before signing the PPA.
It is the discretion of the project developer not availing the benefit of
accelerated depreciation to move the State Commission in a separate
petition for determination of project specific tariff as permitted by the
State Commission in the tariff order No.2 of 2010 dated 29.1.2010. The
said tariff order is a statutory order binding on the project developers
and licensees such as the Appellants and the developers.
v) If the option of signing or not signing the PPA was contingent on
the developers in exercise of option, then that option should have been
specifically sought for by the Appellant and ensured that the same was
incorporated in the PPA. This admittedly has not been done.
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