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2008 (12) TMI 271 - AT - Income TaxDoctrine of "ejusdem generis" - Depreciation claimed @25 per cent on the asset " Right to Collect Toll" - commercial right or intangible asset - doctrine of "ejusdem generis" - license granted by the Maharashtra Government for collection of toll - constructed and maintained by the appellant as build, operate and transfer (BOT) - terms of an agreement with the Maharashtra State Government for fixed period of 16 years and 9 months - AO disallowed the claim - CIT upheld the action of AO. HELD THAT:- If we apply the doctrine of "ejusdem generis" for the purpose of interpretation of the statute, reproduced supra then the word "license" can be read along with the words connected therein such as "commercial rights of similar nature", to be treated as intangible asset. The result of the application of this doctrine is that the commercial rights may be in the nature of license; are therefore to be held intangible assets. In terms of BOT scheme an entrepreneur is required to build an infrastructure facility by arranging its own finances. Thereupon the operation and maintenance is also the responsibility of the entrepreneur. In consideration thereof the entrepreneur is given the right to collect the toll. In this case under Motor Vehicle Act vide a notification levied a toll on the vehicles passing through the infrastructure. Ld AR has clarified that originally the right to collect the toll was from 29th Feb., 2000 to 3rd Feb., 2005. then extended for few more months upto 17th May, 2005 and further extended upto 19th Aug., 2005. At the end of the specified period, the period so settled was from 24th Aug., 1999 to 4th Nov., 2015; the infrastructure facility i.e., road as constructed by the entrepreneurs is required to be handed over to the Government free of cost. Authorities below have duly examined and reproduced the relevant clauses of the tender document, agreement and lease term etc. which are not in dispute. On the basis of the discussion and on due consideration of the facts of the case we can now conclude that the same are pari materia with the decision of respected Co-ordinate Bench in the case of Reliance Ports & Terminals Ltd. wherein the respected Bench has held that in a case where the assessee has a right to use the jetty and a concession was availed then such commercial right is an intangible asset on which depreciation @ 25 per cent is admissible. Therefore, we hereby allow the grounds taken by the assessee and direct to grant the depreciation as claimed. In the result, the appeal is allowed.
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