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2011 (3) TMI 1624 - ITAT PUNEDepreciation on Intangible asset - Applicability of Doctrine of ejusdem generic - satisfaction of conditions viz., development, operation and maintenance were not intended to be cumulative in nature - right to collection of toll from the road over bridge on the parity of reasoning that the assessee was not the owner - HELD THAT:- This issue is covered by the order of the Tribunal Pune Bench, Pune in the case of ASHOKA INFO (P) LIMITED. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX. [2008 (12) TMI 271 - ITAT PUNE-B] wherein with regards to intangible assets and toll collection rights the Tribunal observed that the investment made by the assessee towards construction of a road on built, operate and transfer (BOT) basis in terms of an agreement with the State Government and thereafter an independent right in the form of a licence of toll collection was granted to the assessee for a fixed period of 16 years and 9 months. Applying the doctrine of ejusdem generic for the purpose of interpretation of sec. 32(1)(ii), the word “licence” could be read along with the words “commercial rights of similar nature”. Therefore, the licence granted by the State Government for collection of toll was held as an intangible asset and depreciation was held to be allowable thereon. Nothing contrary was brought to our knowledge - Facts being similar, so following the same reasoning, we hold that the assessee was entitled to claim of depreciation on intangible asset viz. right to collect toll from the road over the bridge on the parity of reasoning that the assessee was not the owner inspite of the fact that the collection was treated as income of the assessee company and was also approved by the State Government. Allowability of claim of deduction u/s 80-IA of the Act - assessee itself makes the investment and itself executes the development work as has been done by this assessee and the amendment introduced by inserting an explanation retrospectively wef. A.Y. 2000-01 by Finance Act, 2007, and relevant C.B.D.T. Circular No.3 of 2008, becomes applicable to it - HELD THAT:- Since this issue has not been discussed and decided by the lower authorities, because they were not having advantage of decision of Hon’ble Bombay High Court in the case of COMMISSIONER OF INCOME-TAX VERSUS ABG HEAVY INDUSTRIES LIMITED [2010 (2) TMI 108 - BOMBAY HIGH COURT] at the relevant point of time - In the interest of justice, we restore this issue to the file of the Assessing Officer to decide the same as per fact and law after providing adequate opportunity of hearing to the assessee. Appeal allowed in part.
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