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TMI Blog2012 (7) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... is without jurisdiction, contrary to law, equity and justice, facts and material on record, is arbitrary, based on conjectures and surmises, passed without application of mind and without following the procedure laid down by the Apex Court. 2 That without prejudice to this generality, the learned AO has erred on facts and in making and CIT(A) in confirming the following disallowances and/or additions to the income u/s 143(3): a) Rs. 7,16,79,768/- on account of excess depreciation claimed on roads since toll road is plant and applicable rate of depreciation is 15% and not 10%. b) Allowable depreciation calculated at Rs. 3,70,92,664/- is also wrong and should have been allowed on W.D.V. basis, calculated on the basis of depreciation ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per provisions of section 32, the amount of depreciation allowable is Rs. 3,70,92,664/-, calculated on the amount of WDV. 4. Upon assessee's appeal, Ld. Commissioner of Income Tax (Appeals) held that the case laws relied upon by the assessee do not lend any support to the cause of the assessee. He held that in view of the past history of the case, he was of the firm opinion that the depreciation with reference to the roads has to be allowed only @ 10% and the action of the Assessing Officer was accordingly sustained. 5. Against the above order the assessee is in appeal before us. 6. We have heard the rival contentions in light of the material produced and precedent relied upon. Ld. counsel of the assessee placed reliance on the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r held that the roads could not be treated building, as there was no other construction except the roads. It cannot, therefore, be said that the roads by themselves would constitute buildings and assessee was not entitled to depreciation on the cost of the construction of the roads. 6.5 In the case of C.I.T. vs. Coromandel Fertilizers Limited 156 ITR 283, the Hon'ble High Court has held that the Roads are actual adjuncts to the assessee and are within the factory premises. The transport of very essential raw material for the manufacture of the fertilisers which is the main business of the assessee company, could not be carried on at all without these roads. They are not roads used by others but constitute part of the fertiliser factory. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction within the factory premises are to be considered as building for the purpose of depreciation on the road through the factory premises should be allowed as a building. 6.9 In the case of C.I.T. vs. Gujrat State Fertilizers Co. Ltd. (1993) 203 ITR 526 (Guj). The Hon'ble High Court had held that the roads laid within the factory premises as links or providing approach to the buildings are necessary adjuncts to the factory buildings to carry on the business activity of the assessee and would be building within the meaning of section 32 of the Act, 1961. It was held that road within the factory premises were entitled to depreciation. 6.10 In the case of Tamil Nadu Development Co. Ltd. vs. ACIT 120 ITD 20, the Chennai Tribunal had held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services with reference to audit were rendered to the assessee company, nor any liability for payment of fee of Rs. 86224/- had been incurred during the F.Y. relevant to the A.Y. under consideration. Ld. CIT(A) further observed that it is an admitted fact that the provision of Rs. 86224/- was with reference to audit to be conducted only in the next F.Y. and necessary deduction of TDS was made at the time of payment of fee to the auditors only in next F.Y. Ld. CIT(A) concluded that neither the expenditure pertained to the A.Y. under consideration nor any liability for the same was incurred during the F.Y. relevant to the A.Y. under consideration. Hence, he confirmed the disallowances made by the AO. 9. Against the above order the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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