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2024 (2) TMI 390 - AT - Income TaxDepreciation on right to collect toll tax on road developed by the Assessee - depreciation on right to collect toll on such road as intangible asset u/s 32(1)(ii) - Whether depreciation may be granted treating the said "road" under the category allowed as "Intangible Assets" @ 25%? - Disallowance of deduction allowable u/s 80IA (4) replacing the amount of amortised value of deduction with allowable depreciation - admission of additional ground - HELD THAT:- Whether the Assessee is eligible for depreciation on right to collect toll tax on road developed by the Assessee or not is already decided by the co-ordinate bench in Assessee’s own case bearing [2021 (6) TMI 94 - ITAT MUMBAI] for assessment year 2005-06 and 2006-07. These orders of ITAT were followed by the co-ordinate benches in Assessee’s case for assessment year 2008-09, 2009-10 and 2010-11[2021 (9) TMI 1536 - ITAT MUMBAI] Thus, it is clear that the right to set up infrastructure facility and collect toll on that is a commercial right, which is an intangible asset in terms of provisions u/s 32(1) (ii) of the Act. Therefore, the Assessee is entitled to claim depreciation. Before CIT (A), the Assessee has made the claim by raising an additional ground, which was incorrectly not admitted. As the issue is squarely covered in favour of the Assessee and the ground should have been admitted by the CIT (A), therefore this non-admission is not sustainable. On the merits, in Assessee’s own case we direct the Ld. AO to grant depreciation on the right to collect toll tax on infrastructure facilities considering same as intangible asset entitled to depreciation at the rate of 25%. We also direct the Ld. AO to re-compute the deduction allowable to the Assessee u/s 80IA (4) by replacing the amount of amortised value of deduction with allowable depreciation. Appeal of the Assessee is allowed.
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