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2017 (2) TMI 1547 - AT - Income TaxDepreciation on toll road - HELD THAT:- It is noted that since in the appeal filed against the original assessment order, Hon'ble High Court has held vide its judgement [2016 (4) TMI 1184 - BOMBAY HIGH COURT] that claim of depreciation is not allowable to the assessee, the same decision would be applicable upon the issue raised by the Revenue before us. Once Hon'ble High Court has taken a view that depreciation is not allowable, the issue before us stands covered against the assessee. Cross objection - appellant prays that the entire cost incurred for construction of "Project Road" may be allowed as deduction treating the same as revenue expenditure while computing the total income - As noted that the claims raised before us are alternative to the main claim made by the assessee. Since the main claim of the assessee has been rejected, in all fairness, justice demands that assessee should be given an opportunity to make his alternative claim in accordance with law. Thus, taking into account the totality of facts and circumstances of the case, as have been brought before us, we find it appropriate to send these issues back to the file of the AO. The assessee shall be at liberty to raise all the legal and factual issue before the AO. The AO shall examine all the issues raised in the Cross Objection and decide them after taking into account all the submissions and evidences, as may be placed on record by the assessee. With these directions, the grounds raised in the Cross Objection are restored to the file of the AO for their appropriate adjudication and these may be treated as allowed, for statistical purposes.
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