THIRUVANANTHAPURAM ROAD DEVELOPMENT CO. LTD,ORRISSA vs. DCIT 14(3)(1), MUMBAI

आदेश / O R D E R

Per Joginder Singh (Judicial Member) The assessee as well as the Revenue is in cross appeal

for the Assessment Year 2010-11 against the impugned

order dated 07/11/2014, whereas, the Revenue is in

appeal for Assessment Year 2011-12 against the impugned

order dated 27/04/2015 of the Ld. First Appellate

Authority, Mumbai and the assessee has preferred cross

objection.

No.622/Mum/2015, wherein, the assessee has raised

additional ground along with main grounds. Before us, the

Ld. counsel for the assessee, Shri Dilip Lakhani, argued the

additional ground with respect to granting depreciation

treating the road under the category allowed as ‘intangible

asset’. It was contended that the issue in hand is covered

by the decision in the cases of Ashoka Info Pvt. Ltd. (ITA

No.44/Pn/2007) from the Pune Bench of the Tribunal,

ACIT vs Ashoka Buildcon Ltd. (ITA No.2317/Pn/2012),

4 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

West Gujarat Expressway Ltd. (ITA No.5904 &

6244/Mum/2012), order dated 15/04/2012,

Thiruvanantpuram Road Development Corporation Ltd.

(ITA No.6798 and 6837/Mum /2011), order dated

23/12/2016 and ACIT vs M/s Andrapradesh Expressway

ltd. (ITA No.655/Mum/2015 & CO. No. 146/Mum2016)

order dated 28/02/2018. On the other hand, Shri M.

Swamy, Ld. CIT-DR and Shri V. Justin, Ld. DR, invited our

attention to the provision of section 32 of the Act by

contending that the assessee is not the owner of the asset,

therefore, the depreciation was rightly denied to the

assessee. Reliance was placed upon the decision in Dinesh

Kumar Gulabchand Agarwal vs CIT (2004) 267 ITR 768

(Bom.).

2.1. We have considered the rival submissions and

perused the material available on record. In view of the

above, we are reproducing hereunder the order of the

Tribunal dated 28/02/2018 in the case of M/s Andra

5 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

Pradesh Expressway Ltd. ((Supra)) for ready reference and

analysis:-

6 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

1.1 "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating fact that the claim of depreciation on loll road is not allowable since the assessee constructed and maintained the toll road on Build, Operate and Transfer (BOT) basis." 1.2 "On the facts and in the circumstances of the case and ID law, the Ld. CIT(A) erred in allowing the claim of depreciation on toll road under the head Plant and Machinery to the extent of Rs. 129,47,99,193/-." 3. The appellant craves leave to add, amend, vary, omit or substitute any or the aforesaid grounds of appeal at any time before or at the time or hearing of appeal. 3. On service of the notice of appeal the assessee has filed Cross Objection raising the following grounds of Objections: 1. On the facts and circumstances of the case the appellant prays that the entire cost incurred for construction of "Project Road" amounting to Rs. 862,91,20,551/- may be allowed as deduction treating the same as revenue expenditure while computing the total income. 2. Without prejudice to Ground No. 1, on the facts and circumstances of the case, the appellant prays that, the depreciation may be granted treating the right to set up infrastructure facility being license/business of commercial rights, as intangible asset in terms of the provisions of Section- 32(1)(ii) and the appellant may be granted the depreciation treating the said right as intangible right at the applicable rate. The appellant prays that the appellant be granted depreciation of Rs. 215,72,80,138/-. 3. Without prejudice to Ground No. 1 & 2, on the facts and circumstances of the case, the appellant prays that, if the road is not treated under the category of plant and machinery for the purpose of granting depreciation then the depreciation may be granted treating the said road under the category of "building". The appellant prays that the appellant be granted depreciation of Rs. 86,29,12,055/- . 4. On the facts and circumstances of the case, the appellant prays that the Learned Assessing Officer allowed amortization of Rs. 21,58,11,556/- considering the cost of road at Rs. 733,76,43,914/- instead of actual cost incurred by the appellant at Rs. 862,91,20,551/-. The appellant prays that the amortized

7 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

cost to be modified to Rs. 50,75,95,326/- in place of Rs. 21,58,11,556/-. 4. We have heard the ld. Department Representative (DR) for revenue and the ld. Authorized Representative (AR) for the assessee and perused the material available on record. The ld DR for the revenue submits the ld Commissioner (Appeals) allowed the depreciation on the basis of decision of Tribunal in West Gujarat Expressway Ltd dated 27th February, 2013 , however, the decision of Tribunal has been reversed by Hon’ble jurisdictional High Court in an appeal by the revenue in CIT Versus West Gujarat Expressway Ltd (2017) 82 taxman.com 224 (Bombay) vide order dated 5th April 2016 in ITA No. 2357 of 2013. The ld. DR further submits that once the Bombay High Court held that the owner ship is always vested with Government the assessee has is not entitled for the depreciation. The ld. AR for the assessee conceded the submissions of lf DR for the revenue. However, the ld. AR for the assessee further submits that the assessee is still entitled for depreciation on intangible right. The assessee has filed Cross Objection raising the grounds of Cross Objection for claiming depreciation on intangible asset. It was further submits that the National Highway Authority vide agreement dated 20.03.2006 granted concession for a period of 20 years commencing form 15th September 2006. The assessee before the assessing officer has categorically contended that the assessee is also entitled for depreciation being intangible rights. In support of his submission the ld AR of the assessee relied upon the decision of coordinate bench in ITA No. 5904/M/2012 & 6244/M/2012 in ACIT versus West Gujarat Expressway Ltd dated 15 April 2015, wherein the depreciation was allowed on toll road as a intangible rights. The ld AR submits that the decision of West Gujarat Expressway Ltd was followed by another bench of Tribunal in Thiruvananthapuram Road Development Company Ltd versus ACIT in ITA No.(s) 6798/M/2011& 6 837/M/2011 dated 23.12.2016. The ld.AR for the assessee submits that his is not pressing ground No.1 of Cross Objection. The ld. DR not disputed the subsequent

8 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

decision of the coordinate bench in allowing the depreciation on toll road on the basis of intangible assets. 5. We have considered the rival submission of both the parties and have gone through the orders of authorities below. Considering the decision of Hon’ble jurisdictional High Court in CIT Versus West Gujarat Expressway Ltd (2017) 82 taxman.com 224 (Bombay), wherein it was held that the owner ship is always vested with Government the assessee is not entitled for the depreciation in the manner in which it has been allowed by ld CIT(A) in this case. Thus, the ground of appeal raised by revenue deserves to be allowed to that extent. However, the claim of depreciation has been supported by the assessee on the other ground, which is part of Cross objection being dealt hereinafter. 6. Now we shall discuss the grounds of cross objections raised by the assessee in its Cross Objections. During the submission, the ld. AR of the assessee submits that his not pressing Ground No.1 of his Cross Objection. Hence, Ground No.1 of the Cross Objection is dismissed as not pressed. Ground No.2 of Cross Objection by assessee relates to depreciation on license/ business of commercial right as intangible rights. The assessee-company is engaged in the business of setting of infrastructure facility, including of development operation and maintenance of road project. The assessee was assigned the work of widening the existing 2 lane highway from 135 km to 211 km (Kotakatta by pass road), covering 74.65 km on National Highway No.7 to 4 lane in State of Andhra Pradesh, vide agreement dated 20.03.2006 by National Highway Authority of India (NHAI). As per the condition of the agreement, the assessee has to built, maintain, operate and to handover the project to NHAI in the year 2026. The assessee is entitled to build, operate and transfer (BOT) annuity basis under the agreement. Thus, the assessee has license/ commercial right. This right is claimed as intangible right by the assessee. The co-ordinate bench of Tribunal while dealing with depreciation on intangible asset in ACIT vs. West Gujarat Expressway Ltd. in ITA No.5904/M/2012, ITA No. 6244/M/2012 dated 15.04.2015 after considering the decision

9 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

of Hon’ble Bombay High Court in CIT vs. West Gujarat Expressway Ltd. (supra) allowed depreciation in respect of toll road being an intangible asset falling within purview of section 32(1)(ii). The relevant portion of the decision of co- ordinate bench is extracted below. “17. We have considered the rival contentions. So far as the reliance of the Ld. A.R. on the article/clause 38.4 of the concession agreement between the assessee and the NHAI is concerned, we find that the identical clause was also there and relied upon in the case of North Karnataka Expressway Ltd. (supra) which has also been reproduced in para 8 of the order of the Hon'ble Bombay High Court (supra). The relevant part of the order for the sake of convenience is reproduced as under: "8. The appellant claimed that it was the owner of the toll road and the entire cost incurred for construction thereof was capitalized by the Appellant in its books in the assessment year 2005-06 during which the construction of the toll road was completed. As the assessment year under consideration was the first year when the road became operational, the Appellant claimed Depreciation of Rs.59.92 crores at the rate of 10% on the capitalized cost of the toll road. The Appellant also filed necessary details of the claim of depreciation and a note was appended to the depreciation schedule stating that though the Appellant was entitled to higher claim of depreciation on toll road, the claim is made at the rate of 10%. The right to claim higher depreciation is reserved. The Appellant relied upon the standard concession document of the National Highway Authority of India and the clause therein that 'for the purpose of claiming tax depreciation, the property representing the capital investment made by the concessionaire shall be deemed to be acquired and owned by the concessionaire'." 18. The Hon'ble Bombay High Court, however, after discussing the provisions of National Highway Act, 1956 and National Highway Authorities of India Act, 1988 and various case laws including that are strongly relied upon by the Ld. A.R. e.g. Mysore Minerals Ltd. v. CIT [1999] 239 ITR 775/106 Taxman 166 (SC), CIT v. Podar Cement (P.) Ltd. [1997] 226 ITR 625/92 Taxman 541 (SC) and Noida Toll Bridge Co. Ltd. (supra), has held that the national highways vest in the Union of India and if the government for the purpose of development and maintenance of the whole or any part of the national highways enters into an agreement with private parties or that merely because the national highway is built, maintained, managed and operated by private entities, in no way affects the vesting of the national highway in the Union and that does not dilute or take away the ownership of the highway or its vesting in the Union. After discussing the various decisions of the Hon'ble Supreme Court and of the Hon'ble High Courts, the contention of the assessee in that case that it was the owner

10 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

of the toll road has been rejected by the Hon'ble Supreme Court. Hence, the clause 38.4 relied upon by the assessee in the present case will not be of any help to the assessee in this regard. 19. However, so far as the alternative claim of the assessee that if the assessee is not found as owner of the toll road, his claim of depreciation be considered in relation to investments made as falling under the other categories of assets, is concerned, we would like to revert to the decision of the Hon'ble Bombay High Court in North Karnataka Expressway Ltd. (supra). in this respect. We find the Hon'ble Bombay High Court, in para 24 of the said decision, has categorically observed that the claim of depreciation in the said case was not based on treating it as an intangible asset with a right to use the asset without being actual owner thereof. The issue under consideration was that whether the toll roads are not owned by the assessee and that he cannot claim any depreciation thereupon. Hence, the Hon'ble Bombay High Court has not discussed the issue relating to the claim of depreciation on the license for right to collect the toll as intangible asset. Further, the Hon'ble Bombay High Court in para 39 of the decision (supra) has observed that as per the provisions of National Highway Act, 1956 and National Highway Authorities of India Act, 1988, the ownership of the toll road vests in Union , however, the term owner as appearing in the Income Tax Act, 1961 has been defined widely and broadly for the purpose of the provisions of the Income Tax Act so as not to allow anybody to escape the provisions thereof by urging that he has a limited right or which is not akin to ownership, therefore his income should not be brought to tax; Similarly, if he can claim any deductions from his income which is comprising of profit and gain from his business, then, that deduction can be availed by him. It is for that limited purpose that the term 'owner' is defined in this manner in Income Tax Act, 1961. The above observations of the Hon'ble Bombay High Court reveal that for the purpose of claiming deduction under Income Tax Act, the term 'owner' as defined under the Income Tax Act can be looked into. However, that cannot control, leave alone or overreach the National Highway Act, 1956 or the National Highway Authorities of India Act, 1988. The Hon'ble Bombay High Court further, in para 47 of the said order, has observed that the assessee can definitely claim depreciation on the investments. He has definitely invested in the projects of construction development and maintenance of the National Highways and such of the assets in the form of building, plant & machinery etc. The claim for depreciation can be validly raised and granted. That the Hon'ble High Court in the said case was only concerned with the claim on the land or a road itself. Further, in concluding para 52 of the order, the Hon'ble Bombay High Court has categorically clarified that

11 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

the assessee's claim for depreciation in respect of the building, plant & machinery and falling within the purview of sub section (1) of section 32 of the Income Tax Act, 1961, if considered and granted, shall not be affected by the decision of the Hon'ble Bombay High Court. 20. A careful reading of the entire decision of the Hon'ble Bombay High Court and in the light of the various observations made in judgment as discussed above, it is very clear that the Hon'ble Bombay High Court was concerned about the issue as to whether the assessee can claim itself as the owner of the toll road and the Hon'ble Bombay High Court has held that in view of the express provisions of the National Highway Act, 1956 and National Highway Authorities of India Act, 1988 the Union is the absolute owner of the National Highways as well as the toll roads built upon the land/National Highways in agreement and through the private parties and such private parties cannot claim themselves to be the owner of the toll road. However, the Hon'ble Bombay High Court has left upon the issue relating to the claim of depreciation, if otherwise eligible under the other provisions of the Income Tax Act. 21. The Ld. A.R., before us, has put the alternative claim that in view of the observations of the Hon'ble Bombay High Court either the investments made by the assessee be treated under the asset building, plant & machinery and depreciation be granted accordingly or the same be treated as intangible asset on the ground that the assessee has been granted license for right to collect the toll tax for a fixed period. Now the question before us is whether the assessee at this stage the can raise the alternative contention for claim of allowance of depreciation on the license authorizing him to collect the toll being an intangible asset or treating the project as plant & machinery? 22. We may observe that the Hon'ble Bombay High Court in the case of CIT v. Pruthvi Brokers & Shareholders (P.) Ltd. [2012] 349 ITR 336/208 Taxman 498/23 taxmann.com 23, while relying upon the various decisions of the Hon'ble Supreme Court and other Hon'ble High Courts, has held that even if a claim is not made before the AO it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim is not barred. The Hon'ble Bombay High Court while relying upon the decision of the Hon'ble Supreme Court in the case of Jute Corpn. of India Ltd. v. CIT [1991] 187 ITR 688/[1990] 53 Taxman 85 has observed that the power of the Appellate Commissioner is coterminous with that of the Income Tax Officer and an appellate authority while hearing appeal against the order of the subordinate authority, has all the powers which the original authority may have in deciding the questions before it, subject to the restrictions or limitations, if any, prescribed by

12 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. An assessee is entitled to raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot, however, be said that they have no jurisdiction to consider the same. The appellate authorities have jurisdiction to deal not merely with additional grounds which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed but could not have been raised at that stage. The words 'could not have been' raised must be construed liberally and not strictly. It is open to the assessee to claim a deduction before the appellate authority which could not have been claimed before the AO. The Hon'ble Bombay High Court has further observed that the decision of Hon'ble Supreme Court in the case of 'Goetze (India) Ltd. v. CIT' [2006] 284 ITR 323/157 Taxman 1 regarding the restriction of making the claim through a revised return was limited to the powers of the Assessing Authority and the said judgment does not impinge on the power or negate the powers of the appellate authorities to entertain such claim by way of additional ground. Reliance can also be placed in this regard on the decisions of the Tribunal in the case of PV. Ananthkrishnan v. ACIT [IT Appeal No.1820/M/2011 dated 05.05.2014] and in the case of Presidency Co-operative Housing Society Ltd. v. ACIT [IT Appeal No.4051/M/2011, dated 16.05.2014]. The present case is not a case where the assessee had not claimed any deduction on account of depreciation. The assessee has very much claimed the deduction of depreciation. However, he has claimed the same treating itself to be the owner of the toll road. Such a claim of the assessee has been allowed in the previous assessment years. The assessee was under bonafide belief that he has correctly claimed the deduction of depreciation on the toll road in view of the consistent findings of the Tribunal on this issue. However, due to the change of legal position in view of the law laid down by the Hon'ble Bombay High Court (supra), the assessee cannot be treated as the owner of the toll road. But it is not disputed that the assessee has made investments on the project and he is entitled to claim deductions in this respect. The claim of deduction has been very much put by the assessee in the return of income but wrongly treating itself as owner of the road which claim as observed above was under bonafide belief and in view of the settled legal position as was there at the time of putting the claim. Even the AO has also observed in the assessment order that it is a fact that the assessee company has incurred huge expenditure on the said project which cannot be treated as revenue expenditure allowable

13 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

in one year as the same has resulted into providing enduring benefit to the assessee company, hence, the said amount would be eligible for amortization for the period of the concession agreement as it was allowed in the A.Y. 2007-08 and 2008-09. It is also a fact that the said amortization of the expenses has not been accepted by the Tribunal and the assessee in the earlier assessment years has been granted deduction as depreciation treating the road as a capital asset. 23. In view of the above facts, it is not disputed or contested by the Revenue that the assessee is not entitled to any deduction. The only issue in dispute is as to under what head/provision the deduction is to be allowed to the assessee. The Hon'ble Jurisdiction High Court of Bombay in the case of Balmukund Acharya v. Dy. CIT [2009] 310 ITR 310/176 Taxman 316 has held that the Hon'ble Apex Court and the various High Courts have ruled that the authorities under the Act are under obligation to act in accordance with law. Tax can be collected only as provided under the Act. If the assessee, under a mistake, misconception or on not being properly instructed is over assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes dues are collected. While holding so, the Hon'ble Bombay High Court has relied upon the various decisions e.g. S.R. Koshti v. CIT [2005] 276 ITR 165/146 Taxman 335 (Guj), C.P.A. Yoosuf v. ITO [1970] 77 ITR 237 (Ker.), CIT v. Bharat General Reinsurance Co. Ltd. [1971] 81 ITR 303 (Delhi), CIT v. Smt. Archana R. Dhanwatey [1982] 136 ITR 355/[1981] 7 Taxman 121 (Bom.). In view of the above discussed factual and legal position, we have no hesitation to hold that the assessee is entitled to put his alternate claim that the deduction allowable to him may be considered as allowable as depreciation treating the project/investments made under the head "Plant & machinery" or treating it as a right/license to collect the toll tax as intangible asset. 24. Having held that the assessee is entitled to the deduction on the investments made by him, we now have to discuss as to under what head the said deductions can be claimed by the assessee. It is undisputed that in view of the agreement with the NHAI, the assessee has been given the right to develop and maintain the toll road and also the right to collect toll for a specified period without having actual ownership over the said toll road. The assessee has an express right/license for recovery of toll fee to recoup the expenditure. The said right brings to the assessee an enduring benefit during the period of agreement. This fact has also been discussed by the CBDT in circular No.09/2014 dated 23.04.14. The para 4 of which, for the sake of convenience, is reproduced as under:

14 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

"There is no doubt that where the assessee incurs expenditure on a project for development of roads/highways, he is entitled to recover cost incurred by him towards development of such facility (comprising of construction cost and other pre-operative expenses) during the construction period. Further, expenditure incurred by the assessee on such BOT projects brings to it an enduring benefit in the form of right to collect the toll during the period of the agreement. Hon'ble Supreme Court in the case of Madras Industrial Investment Corporation Ltd. v. CIT in 225 ITR 802 allowed spreading over of liability over a number of years on the ground that there was continuing benefit to the company over a period. Therefore, analogously, expenditure incurred on an infrastructure project for development of roads/highways under BOT agreement may be treated as having been made/incurred for the purposes of business or profession of the assessee and the same may be allowed to be spread during the tenure of concessionaire agreement." 25. Having discussed the above stated factual position, the CBDT has directed to treat the above expenditure as revenue expenditure and to amortize the same over the period of the agreement as allowable business expenditure. The assessee, however, has claimed that the same is a capital expenditure and it is entitled to deductions over the investments made as depreciation. A perusal of the above reproduced para 4 of the circular reveals that it is not disputed even by the Revenue Authorities that in lieu of the investments made in the project, the assessee has been given right/license to collect the toll. It has also been specifically mentioned that it brings an enduring benefit in the form of right to the assessee. Having admitted the above position by the Revenue, now the question to be considered is whether any depreciation is allowable on such a right? 26. As per section 32(1)(ii) depreciation is allowable on intangible assets like licenses, franchises or any other business or similar commercial rights of similar nature. The relevant part of the section for the sake of convenience is reproduced as under: Depreciation.— (1) In respect of depreciation of — 32. (1) [In respect of depreciation of – (i) buildings, machinery, plant or furniture, being tangible assets; (ii) 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, 1988, owned, wholly or partly by the assessee and used for the purposes of the business or profession, the following deductions shall be allowed- ] ……..” (emphasis supplied by us)

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16 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

iii) Dimension Construction Pvt. Ltd. in ITA No. 222, 223, 233 & 857/PN/2009 dated 18.03.2011. iv) Ashoka Info (P) Ltd. (supra) v) Reliance Ports and Terminals Ltd. (supra). 8. The Ld. CIT(DR) appearing for the Revenue, has submitted that the 'intangible assets' eligible for depreciation in section 32(1)(ii) of the Act, are only those which are owned by the assessee and have been acquired after spending money. In the case of the assessee, by way of an agreement, assessee was awarded a work to construct a road by using own funds and the expenditure incurred was allowed to be reimbursed by permitting the assessee a concession to collect toll/fees from the motorists using the road. Therefore, it could not be said that such a right was within the purview of section 32(1)(ii) of the Act. However, the Ld. CIT(DR) has not contested the factual matrix that identical issue has been considered by our coordinate Benches in the case of Ashoka Buildcon Ltd. (supra), Kalyan Toll Infrastructure Ltd. (supra), Dimension Construction Pvt. Ltd. (supra) and Ashoka Info (P) Ltd. (supra). 9. On the other hand, the Ld. Representative for the respondent assessee pointed out that the aforesaid argument set up by the Revenue has also been considered in the aforesaid precedents before concluding that the impugned 'Right to collect Toll' was an 'intangible asset' eligible for claim of depreciation @ 25% as per sec. 32(1)01) of the Act. 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' 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)(i/) 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.

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18 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

to develop, maintain and operate the toll road and further to collect the toll for the specified period. This right as discussed above is an intangible asset falling under section 32(1)(ii) of the Act. 31. So far as the contention of the Revenue that the investment made by the assessee be treated as a revenue expenditure and be amortized for the period of the agreement, is concerned, we do not find any force in the same on the ground that not only the AO but also the CBDT in the circular (supra) as discussed above has admitted that the license of right to collect toll free has been given to the assessee in lieu of the investments made and that such a right brings to the assessee an enduring benefit. The investments made under such circumstances cannot be said to be of revenue in nature but, as discussed above, are of capital in nature. The assessee, thus, is entitled to claim depreciation on such type of capital asset. 32. In view of our above findings, this ground of the Revenue is hereby dismissed but on a different footing as discussed above and in terms of our observations made above. 7. Considering the decision of co-ordinate bench referred above and respectfully following the same, the assessee is allowed depreciation on road constructed by it under BOT basis as an intangible asset falls within the scope of section 32(1)(ii) of the Act. No contrary decision or material brought to our notice. In the result, ground No.2 of Cross Objection raised by assessee is allowed. The assessee has raised ground no.3 in Cross Objection in alternative to ground no.2. Since, we have allowed the ground no.2 of the Cross Objection. Hence, discussions on ground no.3 have become academic. Ground No.4 of Cross Objection to amortization of cost, as we have already allowed the depreciation to the assessee, the discussions on this ground have also become academic. In the result, the appeal filed by Revenue is allowed for statistical purpose only since the claim of depreciation is ultimately allowed in the Cross Objection filed by assessee.

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2.2. In the light of the above order, now, we shall

examine section 32 of the Act, which deals with

depreciation. It is reproduced hereunder:-

“32. (1) In respect of depreciation of— (i) buildings, machinery, plant or furniture, being tangible assets; (ii) know-how, patents, copyrights, trademarks, 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— (i) 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 prescribed31; (ii) in the case of any block of assets, such percentage on the written down value thereof as may be prescribed32: Provided that no deduction shall be allowed under this clause in respect of— (a) any motor car manufactured outside India, where such motor car is acquired by the assessee after the 28th day of February, 1975 but before the 1st day of April, 2001, unless it is used— (i) in a business of running it on hire for tourists ; or (ii) outside India in his business or profession in another country ; and (b) any machinery or plant if the actual cost thereof is allowed as a deduction in one or more years under an agreement entered into by the Central Government under section 42 : Provided further that where an asset referred to in clause (i) or clause (ii) or clause (iia) or the first proviso to clause (iia), as the case may be, is acquired by the assessee during the previous year and is put to use for the purposes of business or profession for a period of less than one hundred and eighty days in that previous year, the deduction under this sub-section in respect of such asset shall be restricted to fifty per cent of the amount calculated at the percentage prescribed for an asset under clause (i) or clause (ii) or clause (iia), as the case may be :

20 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

Provided also that where an asset referred to in clause (iia)or the first proviso to clause (iia), as the case may be, is acquired by the assessee during the previous year and is put to use for the purposes of business for a period of less than one hundred and eighty days in that previous year, and the deduction under this sub-section in respect of such asset is restricted to fifty per cent of the amount calculated at the percentage prescribed for an asset under clause (iia)for that previous year, then, the deduction for the balance fifty per cent of the amount calculated at the percentage prescribed for such asset under clause (iia)shall be allowed under this sub-section in the immediately succeeding previous year in respect of such asset: Provided also that where an asset being commercial vehicle is acquired by the assessee on or after the 1st day of October, 1998 but before the 1st day of April, 1999 and is put to use before the 1st day of April, 1999 for the purposes of business or profession, the deduction in respect of such asset shall be allowed on such percentage on the written down value thereof as may be prescribed. Explanation.—For the purposes of this proviso,— (a) the expression "commercial vehicle" means "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle" and "medium passenger motor vehicle" but does not include "maxi-cab", "motor-cab", "tractor" and "road- roller"; (b) the expressions "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle", "medium passenger motor vehicle", "maxi-cab", "motor-cab", "tractor" and "road roller" shall have the meanings respectively as assigned to them in section 2 of the Motor Vehicles Act, 1988 (59 of 1988): Provided also that, in respect of the previous year relevant to the assessment year commencing on the 1st day of April, 1991, the deduction in relation to any block of assets under this clause shall, in the case of a company, be restricted to seventy-five per cent of the amount calculated at the percentage, on the written down value of such assets, prescribed under this Act immediately before the commencement of the Taxation Laws (Amendment) Act, 1991: Provided also that the aggregate deduction, in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets or know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets allowable to the predecessor and the successor in the case of succession referred to in clause (xiii), clause (xiiib) and clause (xiv)of section 47 or section 170 or to the amalgamating company and the amalgamated company in the case of amalgamation, or to the demerged company and the resulting

21 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

company in the case of demerger, as the case may be, shall not exceed in any previous year the deduction calculated at the prescribed rates as if the succession or the amalgamation or the demerger, as the case may be, had not taken place, and such deduction shall be apportioned between the predecessor and the successor, or the amalgamating company and the amalgamated company, or the demerged company and the resulting company, as the case may be, in the ratio of the number of days for which the assets were used by them. Explanation 1.—Where the business or profession of the assessee is carried on in a building not owned by him but in respect of which the assessee holds a lease or other right of occupancy and any capital expenditure is incurred by the assessee for the purposes of the business or profession on the construction of any structure or doing of any work in or in relation to, and by way of renovation or extension of, or improvement to, the building, then, the provisions of this clause shall apply as if the said structure or work is a building owned by the assessee. Explanation 2.—For the purposes of this sub-section "written down value of the block of assets" shall have the same meaning as in clause* (c) of sub-section† (6) of section 43. Explanation 3.—For the purposes of this sub-section, the expression "assets" shall mean— (a) tangible assets, being buildings, machinery, plant or furniture; (b) intangible assets, being know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature. Explanation 4.—For the purposes of this sub-section, the expression "know-how" means any industrial information or technique likely to assist in the manufacture or processing of goods or in the working of a mine, oil-well or other sources of mineral deposits (including searching for discovery or testing of deposits for the winning of access thereto). Explanation 5.—For the removal of doubts, it is hereby declared that the provisions of this sub-section shall apply whether or not the assessee has claimed the deduction in respect of depreciation in computing his total income; (iia) in the case of any new machinery or plant (other than ships and aircraft), which has been acquired and installed after the 31st day of March, 2005, by an assessee engaged in the business of manufacture or production of any article or thing 33[or in the business of generation, transmission or distribution] of power, a further sum

22 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

equal to twenty per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii) : Provided that where an assessee, sets up an undertaking or enterprise for manufacture or production of any article or thing, on or after the 1st day of April, 2015 in any backward area notified by the Central Government in this behalf, in the State of Andhra Pradesh or in the State of Bihar or in the State of Telangana or in the State of West Bengal, and acquires and installs any new machinery or plant (other than ships and aircraft) for the purposes of the said undertaking or enterprise during the period beginning on the 1st day of April, 2015 and ending before the 1st day of April, 2020 in the said backward area, then, the provisions of clause (iia)shall have effect, as if for the words "twenty per cent", the words "thirty-five per cent" had been substituted : Provided further that no deduction shall be allowed in respect of— (A) any machinery or plant which, before its installation by the assessee, was used either within or outside India by any other person; or (B) any machinery or plant installed in any office premises or any residential accommodation, including accommodation in the nature of a guest-house; or (C) any office appliances or road transport vehicles; or (D) any machinery or plant, the whole of the actual cost of which is allowed as a deduction (whether by way of depreciation or otherwise) in computing the income chargeable under the head "Profits and gains of business or profession" of any one previous year; (iii) in the case of any building, machinery, plant or furniture in respect of which depreciation is claimed and allowed under clause (i) and which is sold, discarded, demolished or destroyed in the previous year (other than the previous year in which it is first brought into use), the amount by which the moneys payable in respect of such building, machinery, plant or furniture, together with the amount of scrap value, if any, fall short of the written down value thereof : Provided that such deficiency is actually written off in the books of the assessee. Explanation.—For the purposes of this clause,— (1) "moneys payable" in respect of any building, machinery, plant or furniture includes— (a) any insurance, salvage or compensation moneys payable in respect thereof; (b) where the building, machinery, plant or furniture is sold, the price for which it is sold,

23 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

so, however, that where the actual cost of a motor car is, in accordance with the proviso to clause (1) of section 43, taken to be twenty-five thousand rupees, the moneys payable in respect of such motor car shall be taken to be a sum which bears to the amount for which the motor car is sold or, as the case may be, the amount of any insurance, salvage or compensation moneys payable in respect thereof (including the amount of scrap value, if any) the same proportion as the amount of twenty-five thousand rupees bears to the actual cost of the motor car to the assessee as it would have been computed before applying the said proviso; (2) "sold" includes a transfer by way of exchange or a compulsory acquisition under any law for the time being in force but does not include a transfer, in a scheme of amalgamation, of any asset by the amalgamating company to the amalgamated company where the amalgamated company is an Indian company or in a scheme of amalgamation of a banking company, as referred to in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949) with a banking institution as referred to in sub-section (15) of section 45 of the said Act, sanctioned and brought into force by the Central Government under sub-section (7) of section 45 of that Act, of any asset by the banking company to the banking institution. (iv) [***] (v) [***] (vi) [***] (1A) [***] (2) Where, in the assessment of the assessee, full effect cannot be given to any allowance under sub-section (1) in any previous year, owing to there being no profits or gains chargeable for that previous year, or owing to the profits or gains chargeable being less than the allowance, then, subject to the provisions of sub-section (2) of section 72 and sub- section (3) of section 73, the allowance or the part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following previous year and deemed to be part of that allowance, or if there is no such allowance for that previous year, be deemed to be the allowance for that previous year, and so on for the succeeding previous years.”

2.3. If the aforesaid section is analyzed though it

speaks about depreciation on the building, machinery,

plant or furniture owned by the assessee, wholly or

24 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

partially and used for the purposes of business or

profession, as claimed by the Ld. CIT-DR/DR. However,

sub-clause (ii) speaks about knowhow, patents, copyrights,

trademarks, licenses, franchises or any other business or

‘commercial rights’ of similar nature, being ‘intangible

asset’ acquired on or after 1st day of April 1998. The case

of the assessee falls within this category as provided in

sub-section (ii) of section 32(1) of the Act. It is further noted

that the Special Bench of the Hyderabad Tribunal in the

case of ACIT vs M/s Progressive Construction Ltd. (ITA

No.1845/Hyd/2012), order dated 14/02/2017 has

deliberated upon this issue, wherein, the assessee acquired

the right to operate the toll road/bridge and collect toll

charges in lieu of investment made by it in implementing

the project for certain period. Thus, such commercial

rights as envisaged u/s 32(1)(ii) read with Explanation-3(b)

of the said provision, consequently, broadly we are of the

view that the assessee is eligible to claim depreciation on

WDV as an intangible asset. The Mumbai Bench of the

25 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

Tribunal in the aforesaid decision in ACIT vs M/s Andhra

Pradesh Expressway by a later decision dated 28/02/2018

duly considered various decision including the decision

reversed by Hon'ble High Court in CIT vs West Gujarat

Expressway Ltd. (2016) 73 taxmann.com 139; (2017) 390

ITR 400 (Bom.), order dated 05/04/2016. Before us also,

the Ld. CIT-DR/Ld. DR contended that in view of this

decision from Hon'ble jurisdictional High Court, the

assessee is not entitled to depreciation. We have gone

through this order and found that the issue before the

Hon'ble High Court was with respect to treating toll road as

plant and machinery and if that situation decided in favour

of the Revenue. So far as, the decision in the case of

Dinesh Kumar Gulabchand Agarwal vs CIT ((supra)), relied

upon by the Ld. DR, is concerned, the issue before Hon'ble

High Court was with respect to actual use of the vehicle,

kept ready for use in that situation, the Hon'ble High Court

held that the assessee was not entitle to claim depreciation.

Therefore, this decision may not help the Revenue being on

26 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

different issue/facts. So far as, the decision from Hon'ble

Bombay High Court in North Karnataka Expressway Ltd.

vs CIT (2014) 51 taxmann.com 214 (Bom.); (2015) 372 ITR

145(Bom.) is concerned, the issue was decided on the issue

of ownership of asset and on invocation of revisional

jurisdiction u/s 263 of the Act. The relevant para is

reproduced hereunder:-

“20. It is in this backdrop that we have to notice the facts and circumstances in which the claim was raised. Admittedly, the Assessee is in the business of infrastracture development and in the course of which it had constructed the above referred toll road. There is a Concession Agreement with the National Highway Authority of India. The question, therefore, is that when a person like the Assessee who is in the business of infrastructure development in execution of such agreement constructs a road and on Build, Operate and Transfer (BOT) basis on the land owned by the Government, can it claim depreciation on the toll road. 21. When this larger question was posed before the authorities, what they have held is that the Assessing Officer in allowing such a claim has not even considered the basic facts rather there is no consideration of the claim at all and before granting it. The Commissioner came to the conclusion that the depreciation is allowable on specific assets owned by the Assessee and used for the above purpose. The toll road belongs to the Government and the Assessee is not the owner of the said road. Therefore, the depreciation is not allowable on toll road. 22. We do not find that when this notice was issued by the Commissioner to the Assessee under section 263 of the Income Tax Act, there has been any divergence or contradiction as complained by Shri Irani. We do not find any basis for the complaint that the notice and the order passed by the Commissioner of Income Tax are at variance or that the order travels beyond the notice. The essential foundation for the

27 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

notice is as noted above. The Commissioner issued another show cause notice on 2nd December, 2009 and in which also he alleged that the claim of depreciation has been erroneously granted and the order of the Assessing Officer to that extent is erroneous and prejudicial to the interest of the Revenue. The Assessee replied to the show cause notice and gave detailed explanation on how the claim arises. Hence, there was no prejudice nor can it be said that the Assessee was in any manner handicapped in dealing with the show cause notice. 23. The order of the Commissioner deals with the stand of the Assessee and in detail. The Commissioner held that the Assessing Officer had not discussed this claim at all. He has granted it without any application of mind and mechanically. There is justification for such a conclusion by the Commissioner. 24. Then, the Commissioner discussed the claim on merits. He found that the ownership of the road cannot be claimed by the Assessee. The claim of depreciation is not based on treating it as an intangible asset with a right to use the asset without being actual owner thereof. In that regard, the Commissioner referred to the orders passed by the Bombay Bench of the Income Tax Appellate Tribunal in the case of Reliance Port and Terminals Ltd. and that of the Delhi Bench of the Tribunal dated 19th December, 2008 in the case of Noida Toll Bridge Company and held that firstly, the Assessing Officer did not apply his mind at all and secondly, the toll roads are not owned by the Assessee and he cannot claim any depreciation thereon.” The Hon'ble Apex Court in the case of ICDS Ltd. vs

CIT (2013) 350 ITR 527 (Supreme Court) while dealing with

interpretation of section 32 of the Act held as under:-

“'10. Depreciation is the monetary equivalent of the wear and tear suffered by a capital asset that is set aside to facilitate its replacement when the asset becomes dys- functional. In P.K. Badiani v. Commissioner of Income tax, Bombay, this Court has observed that allowance for depreciation is to replace the value of an asset to the extent it has depreciated during the period of accounting relevant to the assessment year and as the value has, to that extent,

28 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

been lost, the corresponding allowance for depreciation takes place.” 2.4. Undoubtedly, we are in agreement with the

contention of the Ld. CIT-DR/DR to the effect that the

assessee is not the owner of the asset/road. However, the

assessee made a huge investment for creation of the asset

for Govt. Of India and simultaneously acquired certain

rights in the property enabling it to earn income by way of

collection of toll fee for a specified period, thus, in the

process, recovering of its cost of investment with certain

amount of profit. In any way, for the assessee, BOT road,

bridges etc. as intangible asset and the assessee is claiming

depreciation on the very same asset created with its own

expenditure. Thus, such an intangible asset comes within

the expression ‘other business or commercial rights’. Thus,

in our view it falls within the category of any other business

or commercial rights of similar nature as provided u/s

32(1)(ii) of the Act. In the present appeal, the assessee

claimed depreciation on road as plant and machinery for

Rs.12,99,43,225/-, which was disallowed by the Ld.

29 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

Assessing Officer on the plea that the assessee is not the

owner of the toll road, hence not eligible for depreciation.

To this extent, that the assessee is not the owner of the

asset/road, we agree with the contention of the Ld.

Assessing Officer as well as the ld. CIT-DR/DR. However,

the issue before us falls within the category of intangible

asset. The Ld. Commissioner of Income Tax (Appeal) also

allowed depreciation as a building instead of plant and

machinery. We feel this is neither building nor a plant and

machinery rather the claim of depreciation to the assessee

is allowable to the extent of Rs.9,28,86,339/- in the

category of commercial rights of similar nature being

intangible asset as provided u/s 32 (1)(ii) of the Act. To

this extent, only, the additional ground raised by the

assessee is allowed at applicable rate of deprecation i.e. @

25%. It is further noted the present road is since 2008-09

and license was granted to the assessee in terms of

collecting tax/tolls and the Tribunal for Assessment Year

30 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

2008-09, decided the issue in favour of the assessee. In the

absence of contrary facts, no contrary decision is expected.

Act is concerned, it is consequential in nature.

No.636/Mum/2015), is concerned, the first ground raised

by the assessee pertains to interest income of

Rs.36,25,280/- whether taxable under the head ‘business

income’ and not income from other sources’ is concerned,

we find that the Ld. Commissioner of Income Tax (Appeal)

has followed the decision from Hon'ble Bombay High Court

in CIT vs Lok Holding (308 ITR 356)(Bom.). Thus, we find

no infirmity in the order. This ground of the Revenue is

dismissed.

4.1. The next ground i.e. ground no.2, was sent to

the file of the Ld. Assessing Officer, therefore, no grievance

is caused to the Revenue. The Ld. Assessing Officer is

directed to decide the issue in accordance with law.

31 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

4.2. So far as, the claim of depreciation , on the issue

of ownership of asset is concerned, this has been decided

against the assessee. Thus, it has remained for academic

interest only.

4.3. So far as, ground no. 3.2. allowing the claim of

depreciation to the extent of Rs.9,28,86,339/- is

concerned, this issue has already been decided by us in

earlier paras of this order.

Thus, the appeal of the Revenue is partly allowed and

disposed in terms indicated above.

in ITA No.4346/Mum/2015, wherein, the only issue

pertains to allowing depreciation to the assessee by holding

that assessee is the owner of the toll road ignoring the fact

that the Toll road was build on BOT basis and ownership

based with the government. To this extent, we agree that

the assessee is not the owner of the toll road and merely

allowed to take commercial rights as intangible assets for a

32 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

particular period. This issue has deliberated upon tin

earlier paras of this order, thus, this appeal of the assessee

is disposed of in terms of the order in ITA

No.622/Mum/2015.

No.4346/Mum/2015) is concerned, the assessee has raised

the grounds that if the assessee is not treated under the

category of plant and machinery or building for the

purposes of depreciation then the assessee may be allowed

depreciation as ‘intangible asset and depreciation was

allowed to the extent of Rs.13,65,47,598/-. We have

already adjudicated this issue and allowed the depreciation

to the extent of Rs.9,28,86,339/-, thus, this C.O. of the

assessee has already been automatically disposed off being

in-fructuous.

No.622/Mum/2015, the ground no. 2 has remained for

33 Thiruvananthapuram Road Development Company Ltd. ITA Nos.622, 636, 4346/Mum/2015 & C.O. No.25/Mum/2017

academic interest only, consequently, dismissed as

infractuous.

Finally, the appeals of the assessee as well as of the

Revenue are disposed off in terms indicated hereinabove.

This Order was pronounced in the open court in the

presence of ld. representatives from both sides at the

conclusion of the hearing on 23/05/2018.

Sd/- Sd/- (N.K. Pradhan) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 23/05/2018 f{x~{tÜ? P.S /�नजी स�चव आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file.

आदेशानुसार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai,