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2023 (2) TMI 32 - HC - Income TaxRevision u/s 263 by CIT - Depreciation on road and toll bridge constructed by the assessee - contention of the Income Tax Department that they are not entitled to claim deprecation at all as roads and bridges are neither plant nor buildings - When the assessee had only undertaken the construction of bridges for the Government and the Government is the owner of the land and the bridges, whether the Tribunal was right in setting aside the order of revision passed under Section 263 ? - HELD THAT:- Assessing Officer had accepted the contention of the assessee that the assessee was entitled to depreciation at 25% by treating the “Toll Road” as a “Plant” even though, neither the “Toll Road” belongs to assessee nor it is a “Plant”. Tribunal allowed the assessees’ appeals for the Assessment Years 2004-2005 by holding that the issue as to whether the “Toll Road” were a “Building” or a “Plant” was a debatable issue and Assessing Officer having taken one of the plausible view, such view cannot be disturbed under Section 263 of the Income Tax Act, 1961 and therefore set aside the order of the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961. The Commissioner instead of giving final finding remitted back to the Assessing Officer to pass a fresh order. The issue was left open to be decided by the Assessing Officer vide order of the Commissioner while exercising power under Section 263 of the Income Tax Act 1961. It was open order of remand. Admittedly the Commissioner has refrained from passing any order on merits. Tribunal has erred in concluding that the Assessing Officer has taken one of the plausible view before for the benefit of depreciation at 25% on “Toll Road” as “Plant”. In our view, such view was not plausible as “ Toll Roads’ under the concessionaire agreement neither conferred upon the said assessee any “Tangible Assets” nor “Intangible Assets” in the light of answers given to the substantial question Nos.1 and 2 above. Decided in favor of Revenue.
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