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2017 (10) TMI 1380 - HC - Income TaxClaim of depreciation on public roads - as per department that the National Highway is not road, in that view of the matter, the same will not be governed by the Schedule of Appendix-I and they will not be entitled for the expenses under the capital account - Held that:- While considering the matter, we have to go by the common parlance of road where public at large has an access. The assessee was granted license for construction against which he has right to use and collect license fee to use of the land. In that view of the matter, he has right to restrict the people without non payment of toll tax. If we look at the definition which is given under the Income Tax Act, even a development made while occupying the premises and development of a road was the main agreement MOU referred by us.In view of written submissions submitted by Mr. Ranka, it is not only road, they have to construct toll booth and provide facilities for the staff for the purpose of their accommodation. In that view of the matter, the Supreme Court judgment which is sought to be relied upon by the department in Challapalli Sugars Ltd. V. CIT [1974 (10) TMI 3 - SUPREME COURT] will not apply and the tribunal has rightly interpreted the change in law and more particularly under the law which has been inducted after year 1983. Thus, on the first issue, we are in complete agreement with the view taken by the tribunal in allowing the claim of depreciation on public roads treating the same as building. - Decided against revenue Claim of depreciation on EDP Equipments - @ 60% OR @ 15% - treated as physical structures OR computers - Held that:- The contention which has been raised that equipment which are attached with the power equipment are not entitled under item no.5 of Schedule-I, in view of the fact that note 7 will not cover complete equipment which are attached with the system but in our considered opinion the optical fibers which are used exclusively for the computer configuration and it is mandatory for the operation. It is part of computer system. In that view of the matter, the view taken by the tribunal is just and proper.- Decided against revenue Disallowance under 43B(f) - Held that:- We find that the Hon’ble Calcutta High Court has struck down section 43B(f) being arbitrary, unconscionable and de hors the Apex Court decision in the case of Bharat Earth Movers [2000 (8) TMI 4 - SUPREME COURT]. This judgment was duly brought into the notice of the ld. CIT(A). CIT(A) without taking note of the ratio laid down by the Hon’ble Calcutta High Court proceeded to sustain the finding of the AO. CIT(A) has recorded the fact that the AO has disallowed the claim as per provisions of section 43B(f) of the Act and it has been struck down by the Hon’ble Calcutta High Court. In our considered view, the ld. CIT(A) was not justified and acted this issue is set aside. The AO is directed to delete the disallowance in the light of judgment of Hon’ble Calcutta High Court rendered in the case of Exide Industries Ltd. & Others vs. Union of India & Others [2007 (6) TMI 175 - CALCUTTA HIGH COURT]. - Decided against revenue Disallowance under section 14A - Held that:- In the absence of any material or basis to hold that the interest expenditure directly or indirectly was attributable for earning the dividend income. The AO ought not to have invoked the provisions of section 14A for making the disallowance. - Decided against revenue
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