MAHAKALESHWAR TOLLWAYS PRIVATE LIMITED,UJJAIN vs. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -1, NASHIK

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ITA 492/PUN/2020Status: DisposedITAT Pune11 August 2022AY 2013-145 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The tribunal condoned the delay in filing the appeals, stating it was not intentional. It further held that the right to collect toll is an intangible asset eligible for depreciation under Section 32(1)(ii) of the Act, overturning the lower authorities' decisions.

What were the facts?

The assessee challenged the rejection of its depreciation claim on the right to collect toll for assessment years 2012-13 and 2013-14. The appeals were filed with a significant delay.

What were the issues?

Whether the delay in filing the appeal should be condoned and whether the right to collect toll qualifies as an intangible asset for depreciation.

Which sections of the Income-tax Act were involved?

Section 32(1)(ii)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, “A” BENCH, PUNE

Before: SHRI S.S.GODARA, JM & SHRI DR. DIPAK P. RIPOTE, AM

For Respondent: Shri Arvind Desai
Hearing: 22.06.2022Pronounced: 11.08.2022

आदेश / ORDER PER S. S. GODARA, JM :

1.

These assessee’s twin appeals for A.Y. 2012 -13 & 2013-14 are directed against the CIT(A)-, Pune’s order’s dated 28/01/2020 CIT(A),Pune-12/10260- 10261/2016-17 involving proceeding u/s. 143(3) of the Income Tax Act, 1961; in short "the Act”.

Case called twice. None appears at the assessee’s behest. It is accordingly proceeded. We have heard the Revenue and perused the case files.

2.

We note with the able assistance coming from the Revenue side that the assessee’s identical sole substantive grievance challenges correctness of the CIT(A)’s action rejecting its depreciation claim(s) of Rs.183,678,752/- & Rs.12,64,68,843/- ; assessment year wise, respectively, followed by non- condonation of delay for 420 days each therein.

3.

It emerges first of all that the CIT(A)’s identical detailed discussion in para 3.1 to 3.4 has considered the assessee’s condonation averments of communication gap at various levels. Suffice to say, hon’ble apex court’s land mark decision in the Collector Land Acquisition V/s. v/s Mst. Katiji & Others (1987) 167 ITR 471 (SC) holds that all technical aspects must make way for the cause of substantial justice. We conclude in light thereof the impugned delay of 420 days each in filing of assessee’s lower appeals before the CIT(A) was neither intentional nor deliberate on account of circumstances beyond its control. The CIT(A)’s action refusing the condon the same stands reversed accordingly.

4.

Next comes assessee’s identical grievance on merits that both the lower authorities have erred in law and on facts in not treating its right to collect toll as an intangible asset entitled for depreciation in light of section 32(1)(ii) of the Act. The Assessing Officer appears to have place reliance on the CBDT Circular No. 2014 dated 23.04.2014 that cost of construction of development of infrastructure facilities / roads/ highways under BOT projects is to be amortized and claimed as the eligible business expenditure. Needless to say, the CIT(A) has nowhere adjudicated the issue on merits.

5.

We have given our thoughtful consideration to the assessee’s forgoing depreciation claim disallowance on merits and find no substance in Revenue’s stand. This tribunals Special Bench’s decision in ACIT V/s Progressive Constructions Ltd. (2018) 161 DTR 289 (HYD)(SB) has already decided the issue in the taxpayer’s favour and against the department. Mr. Desai vehemently quoted (2014) 51 taxmann.com 214(Bom.) North Karnataka Expressway Pvt. Ltd. V/s CIT that hon’ble jurisdictional high court has already decided the issue in Revenue’s favour. He fails to rebut the clinching fact their lordships had not considered the assessee’s “right” to collect toll as an intangible asset u/s.32(i)(ii) of the Income Tax Act but decided it qua ownership claim of the project land. The Revenue’s instant arguments are rejected therefore.

6.

Delay of 133 days in filing institued on 10.08.2020 on account of covid-19 pandemic outbreak is condoned.

7.

These assessee’s appeals are allowed in above terms. A copy of this common order be placed in the respective case files.

Order pronounced in the Open Court on this 11th day of August, 2022.

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