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2017 (3) TMI 28 - AT - Income TaxRevision u/s 263 - in order which is erroneous and prejudicial to revenue - depreciation on “Infrastructure usage facility” - Held that:- In case of CIT Vs. Nirma Chemicals Works (P.) Ltd. [2008 (2) TMI 373 - GUJARAT HIGH COURT] in context of the Commissioner’s power to revise the decision of the Assessing Officer under section 263 of the Act, has rejected the contention of the revenue that simply because the assessment order was silent on a particular claim made by the assessee, it would mean that such order does not reflect any application of mind. In the case of Techno Shares & Stocks Ltd. Vs. CIT (2010 (9) TMI 6 - SUPREME COURT OF INDIA ), wherein the Apex Court has held that membership card is entitled to depreciation. Here it is noteworthy that even though floor of exchange was owned by the stock exchange on the basis of right to use the floor of exchange, the depreciation was granted to the member. It was held that right of membership was license or akin to license and had a commercial value. The court also clarified that even though there was a clause that in case of default, the right would vest with the exchange, the same would not make no difference, because till the time the member was not defaulting, he was entitled to use the floor of exchange under the license. Recently the Bombay High Court in the case of Birla Global Assets Finance Co. Ltd. [2012 (10) TMI 1047 - HIGH COURT OF BOMBAY] held that business and commercial brand equity is an intangible assets and therefore, the depreciation claim on the same is allowable under section 32 of the I.T. Act, 1961. The claim of the assessee, depreciation on “Infrastructure usage facility” has been made from the Assessment Year 2004-05 of the assessee’s existence and in our considered opinion same should not be distributed in view of the foregoing observation and respectfully following the decision of the Higher Courts, we allow the appeal of the assessee.
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