TMI Blog2021 (9) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... r year may be deducted from the initial cost of infrastructure facility of roads/bridge and the cost so reduced shall be amortized equally over remaining period of toll concessionaire agreement (refer para 7 of the CBDT circular no. 09/2014 dated 23.04.2014). This effectively means that the reduced cost is to be amortized equally over the remaining period. There is nothing in the circular to suggest and the same shall be applicable on retrospective basis. Action of the Ld. AO in applying the circular retrospectively is not in order. Accordingly, the disallowance made by the Ld. AO on account of difference between the depreciation claimed and the depreciation allowed on the basis of amortization for the remaining part of the concessionair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. The assessee company has entered into a concession agreement with National Highways Authorities of India under which the assessee Company was given granting of concession to undertake, design, engineering, procurement, construction, operating and maintenance if the sole and exclusive right to demand, collect and appropriate fee toll from the user of the project for a period of 30 years for implementing the activity under BOT Model. For A.Y 2012-13, it filed its return of income on 27.09.2012 declaring a loss of ₹ 4,80,44,786 /-. The Assessing Officer made disallowance of ₹ 3,35,75,114/- on account of excess depreciation by observing that the amount claimed by the assessee is excess depreciation. 4. Being aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso submitted that Ld CIT (A) relied upon the decision of Hon ble Allahabad High Court in the case of Noida Toll bridge Ltd. Hon ble Mumbai High Court analysed the decision of Hon ble Allahabad High Court in para 50 of the decision and held that Where assessee, infrastructure development company constructed a road on Build, Operate and Transfer (BOT) basis on land owned by Government, assessee could not claim depreciation on toll road so constructed operated. v. It is also submitted that it is rightly observed by the AO that circular No 9 of 2014 is clarificatory in nature as it cannot override the express provisions of the Act and it provides the clarification to the existing provisions of the Act. Being clarificatory in nature, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Circular was introduced prospectively. The intention of the Circular was not that it should be applied on retrospective basis otherwise it would have been specifically mentioned in the Circular. However, on simple reading of the Circular it is nowhere mentioned that such amendment takes place retrospectively. The Ld. AR relied upon the decision of the Tribunal in case of Associate Company of assessee M/s Paradip Port Road Company Ltd. subsidiary Company of NHAI for the Assessment Year 2012-13 order dated 4/9/2018 on same facts and grounds wherein the Tribunal dismissed the appeal of the Revenue. The Ld. AR also relied upon the following decisions:- Madras Industrial Investment Corporation Ltd. Vs. CIT 91 Taxman 340 (S.C) Moada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospectively in the case of the appellant. 4.5 Per fact of the case, return of income was filed by the appellant on 28.09.2012 when the subject Circular was not available. The AR has stated that following the Circular, the appellant company has amortized WDV on 01.04.2014 over the remaining life of the asset. A close reading of the Circular also shows that deduction claimed out of initial cost of development of infrastructure, facility of road /highway under BOT projects in earlier year may be deducted from the initial cost of infrastructure facility of roads/bridge and the cost so reduced shall be amortized equally over remaining period of toll concessionaire agreement (refer para 7 of the CBDT circular no. 09/2014 dated 23.04.2014). ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
