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Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals)-1, Nashik dated 19-05-2016 for the assessment year 2012-13.
The Revenue in appeal has raised solitary ground against the findings of Commissioner of Income Tax (Appeals) in allowing depreciation @ 25% on the license to collect toll.
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The brief facts of the case as emanating from records are : The assessee is engaged in the business of operation and maintenance of infrastructure facility etc. The assessee filed its return of income on 17-09-2012 for the assessment year 2012-13 declaring total income as Nil. In scrutiny assessment proceedings the Assessing Officer disallowed assessee’s claim of excess depreciation Rs.2,59,72,798/- on the right to collect toll. The stand of the assessee is that “right to collect toll” is as intangible asset and hence, the assessee is entitled to claim depreciation on same as per law. The Assessing Officer instead allowed amortization of development cost of infrastructure over the remaining period of toll concessionaire agreement.
Aggrieved by the assessment order dated 06-01-2015, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) by placing reliance on the decision of Tribunal in assessee’s sister concerns Ashoka Info Pvt. Ltd. in ITA No. 44/PN/2007 decided on 31-12-2008 and Ashoka Bridgeways in ITA No. 686/PN/2012 decided on 29-04-2013 allowed assessee’s claim of depreciation @ 25% on “right to collect toll”. Against the findings of Commissioner of Income Tax (Appeals), the Revenue is in appeal before the Tribunal by raising following grounds “1) On the facts & circumstances of the case and in law the Ld. CIT(A) has erred in allowing the depreciation @ 25% of Rs.6,53,90,973/- as claimed by the assessee on “License to collect toll”. 2) On the facts & circumstances of the case and in law whether the Ld. CIT(A) was justified in holding that assessee was eligible to claim depreciation on „License to collect toll‟ considering it as an intangible asset in terms of section u/s. 32(1)(ii) of the Act. 3) The appellant craves to add, amend or delete any of the above grounds.”
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None has appeared on behalf of the assessee. However, written submissions have been filed on behalf of the assessee. The same are reproduced here-in-below : “It may please be your honour Following submissions are prayed to be considered in the above referred appeal, which is a covered matter, in deciding it.
Facts of the case : 1.1 Respondent is a special purpose company, incorporated in pursuance of a contract with the Ministry of Road Transport Highways, Government of India, to design, reconstruct, strengthen, widen, rehabilitate, engineer, procure, finance, construct, operate and maintain Katni bypass road from 361 Kms to 378 Kms in the State of Madhya Pradesh, on Build, Operate & Transfer (BOT) basis. As per the Agreement, appellant constructed the said infrastructure road/facility and is maintaining the same at its own cost, by arranging own funds, in return/ consideration of rights to collect toll for the specified period, from the motorists using the road. On expiry of the specified period, respondent is under the obligation to transfer the constructed road to the NHAI, without any cost or charge i.e. free of cost. It is only upon construction of road, appellant was bestowed with the 'right to collect toll'. Thus, in effect, to obtain 'toll collection right', appellant incurred cost of road construction and there is direct link between the cost incurred on construction of road and the toll collection right acquired by the respondent. Further, to enable respondent to collect toll from the motorists using the road facility, the Government of India has issued a notification dt. 20.02.2008 (Page Nos 05-06). Kindly, note that, no person is authorized to collect any toll from the motorists using the road, unless enabling notification is issued by the concerned Government. Else the toll collection is illegal and prohibited by law. It was by this notification, appellant got right to collect toll, for the period from 20.02.2008, on making investment of about Rs. 70.86 Crores in construction of the infrastructure facility. Therefore, according to respondent, in commercial reality, the underlying asset that has come into existence by spending on construction of road is the 'right to collect toll' and since this right is bestowed on respondent by issue of the said notification under a statute, it is in the nature of 'licence'. Hence, in accounts as well for income tax, the expenses incurred on construction of road were capitalized under the head 'Licence/Right to Collect Toll'. Further, by use of the right to collect toll, revenue stream of toll collection is earned in the business of appellant. Moreover, this right is transferable and respondent raised project loan, on the security of this right as well as loan on the securitization of future toll collection (Page Nos. 07-14). Thus, the right of toll collection, acquired by the respondent, on issue of Government Notification, is the valuable commercial right. Hence, the licence/right to collect toll, being intangible in nature, respondent considered cost incurred to acquire it as 'Intangible Asset', under income tax, as envisaged u/s 32( l)(ii) and claimed depreciation there on @25%, amounting to Rs.6,53,90,973/- in the year under appeal.
However, the A.O. has rejected appellant's claim for depreciation of Rs.6,53,90,973/- u/s 32(1)(ii), as an intangible asset, for the reason that the
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ownership of the asset does not vest with appellant. He has followed CBOT Cir. No. 09/2014, dtd : 23/04/2014 and has allowed for amortization of capital expenditure incurred on the construction of the road facility, over the period of toll collection. Accordingly, for the year under consideration amortization of the capital expenditure has been allowed at Rs.3,94,18,175/-, after disallowing appellant's claim for depreciation at Rs.6,53,90,973/-. 1.2 Aggrieved by the disallowance of depreciation, respondent preferred appeal to the CIT(A) - 1, Nashik & the learned CIT(A) allowed appeal of respondent by relying on the following ITAT decisions – i. Ashoka Info Pvt. Ltd in ITA No. 44/PN/07 dated 31/12/2008 ii. Ashoka Bridgeways in ITA No. 686/PN/12 dated 29/04/2013 iii. Reliance Ports and Terminals Ltd in ITA Nos. 1743 to 45/Mum/07 dated 26/11/2007 2. Submissions: The issue of depreciation on right to collect toll, as an intangible asset u/s 32(1)(ii), arising in the present appeal, is squarely covered in favour of respondent by decision of Honourable 'B' Bench in the respondent's own case i.e. Ashoka DSC Katni By-pass Road Pvt. Ltd v/s DCIT in ITA NO.239/PN/2012 for Assessment Year 2008-09 Page (Nos.15- 18). Further, respondent's claim is also supported by 1) the recent decision of the Honourable 'A' Bench in the respondent's group concern case i.e Ashoka Highways (Durg) Ltd vis ITa in ITA No. 1629/PUN/2016 and Ashoka Highway (Bhandara) Limited vis ITa in ITA No.1630/ PUN/2016 for Assessment year 2012-13, decided by the combined order dt 08.06.2018. Copy of the said Order is enclosed for ready reference (Page Nos 19-33). The Circular No. 9/2014 dt. 23.04.2014 is also duly considered by the Hon'ble ITAT in this decision. 2) The recent ITAT Special Bench decision in the case of Progressive Construction Ltd (Page Nos. 34 - 48). In this decision also the CBDT Circular No. 9/2014 dt. 23.04.2014 is duly considered. Therefore, it is prayed to dismiss the appeal of Department, by upholding the decision of the learned CIT(A) - I, Nashik. For Ashoka DSC Katni By-pass Road Pvt. Ltd.”
Shri Sanjeev Ghei representing the Department fairly admitted that the issue raised in the appeal by the Revenue is identical to the one decided by the Co-ordinate Bench of the Tribunal in assessee’s own case in ITA No. 239/PN/2012 for assessment year 2008-09 decided on 30-04-2013 and in the case of assessee’s sister concerns M/s. Ashoka Highways in ITA No. 1629/PUN/2016 and ITA No. 1630/PUN/2016 decided on 08-06-2018.
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We have perused the written submissions filed on behalf of the assessee and have heard the submissions made by ld. DR. We have also perused the orders of the authorities below. The Commissioner of Income Tax (Appeals) has allowed depreciation on “right to collect toll” by following the order of Tribunal in assessee’s sister concerns. We observe that the Co-ordinate Bench of the Tribunal in assessee’s own case DCIT Vs. Ashoka DSC Katni Bypass Road P. Ltd. in ITA No. 239/PN/2012 decided on 30-04-2013 allowed depreciation to the assessee on “right to collect toll”. The relevant extract of the findings of Tribunal are as under : “4. We have heard the parties and perused the record. So far as the basic facts are concerned, there is no dispute. We find that in the opinion of the Assessing Officer the right of collection of toll as per the contract between the Government and assessee is not licensing agreement but repayment agreement. It is not disputed by the Assessing Officer that the assessee after entering into the concession agreement under BOT basis, invest its own funds for constructing/developing the road, sets up toll plazas and collects toll from the vehicles to use the developed roads at the rates agreed with the Government for a fixed period and after the expiry/lapse of the agreement period, transfers the entire project back to the Government. 5. We find that the identical issue has come for the consideration before ITAT, Pune in the case of ACIT(C), Circle-I, Nashik Vs. Ashoka Infraways Pvt. Ltd. ITA Nos. 185 & 186/PN/2012 order dated 29-04-2013. The facts of the case are identical with the case of present assessee. The Tribunal considered the decision in the case of Reliance Port and terminal Ltd. ITA Nos. 1743 to 1745/Mum./2007 dated 26-11-2007 “ITAT Mumbai Benches” and Ashoka Info Pvt. Ltd ITA No. 44/PN/2007 dated 31-12-2008 ITAT Pune Bench and held as under: 10. We have carefully considered the rival submissions. Factually speaking, there is no dispute to the fact that the costs capitalised by the assessee under the head „License to collect Toll‟ have been incurred for development and construction of the infrastructure facility, i.e., Dewas By-pass Road. It is also not in dispute that the assessee was to build, operate and transfer the said infrastructure facility in terms of an agreement with the Government of Madhya Pradesh. The expenditure on development, construction and maintenance of the infrastructure facility for a specified period was to be incurred by the assessee out of its own funds. Moreover, after the end of the specified period, assessee was to transfer the said infrastructure facility to the Government of Madhya Pradesh free of charge. In consideration of developing, constructing, maintaining the facility for a specified period and thereafter transferring it to the Government of Madhya Pradesh free of charge, assessee was granted a „Right to collect Toll‟ from the motorists using the said infrastructure facility during the specified period. The said „Right to collect the Toll‟
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is emerging as a result of the costs incurred by the assessee on development, construction and maintenance of the infrastructure facility. Such a right has been adjudicated by the Tribunal in the aforesaid precedents to be in the nature of „intangible asset‟ falling within the purview of section 32(1)(ii) of the Act and has been found eligible for claim of depreciation. No decision to the contrary has been cited by the Ld. DR before us and, therefore, we find no reasons to depart from the accepted position based on the aforesaid decisions. 11. So however, the plea of the Ld. DR before us is to the effect that the impugned right is not of the nature referred to in section 32(1)(ii) of the Act for the reason that the agreement with the Government of Madhya Pradesh only allowed the assessee to recover the costs incurred for constructing the road facility whereas section 32(1)(ii) of the Act required that the assets mentioned therein should be acquired by the assessee after spending money. The said argument in our view is factually and legally misplaced. Factually speaking, it is wrong to say that impugned right acquired by the assessee was without incurrence of any cost. In fact, it is quite evident that assessee got the right to collect toll for the specified period only after incurring expenditure through its own resources on development, construction and maintenance of the infrastructure facility. Secondly, section 32(1)(ii) permits allowance of depreciation on assets specified therein being „intangible assets‟ which are wholly or partly owned by the assessee and used for the purposes of its business. The aforesaid condition is fully satisfied by the assessee and therefore considered in the aforesaid perspective we find no justification for the plea raised by the Revenue before us. 12. In the result, we affirm the order of the CIT(A) in holding that the assessee was eligible for depreciation on the „Right to collect Toll‟, being an „intangible asset‟ falling within the purview of section 32(1)(ii) of the Act following the aforesaid precedents. 6. We further find that the Ld.CIT(A) has followed the decision of the ITAT, Pune in the case of Ashoka Infor Pvt. Ltd. ITA NO. 44/PN/2007 dated 31-12-2008. We, therefore find no reason to interfere with the order of the Ld.CIT(A) for allowing the claim of the depreciation in favour of the assessee. Accordingly, the order of the Ld.CIT(A) is confirmed. 7. In the result, the revenue‟s appeal is dismissed.”
Similar view has been taken by the Co-ordinate Bench in ITA No. 1629/PUN/2016 and ITA No. 1630/PUN/2016 decided on 08-06-2018 in the case of assessee’s sister concerns. The Revenue has not brought on record any material to show any change in the facts in the assessment year under appeal. Under such circumstances we do not find any infirmity in the order of Commissioner of Income Tax (Appeals) in accepting assessee’s
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claim. Accordingly, the findings of Commissioner of Income Tax (Appeals) are upheld and the appeal of the Revenue is dismissed.
In the result, the appeal of the Revenue is dismissed.
Order pronounced on Friday, the 31st day of August, 2018.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 31st August, 2018 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A)-1, Nashik 3. 4. The Pr. Commissioner of Income Tax-1, Nashik ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “ए” बेंच, 5. ऩुणे / DR, ITAT, “A” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune