TMI Blog2014 (1) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... to enjoy its usufruct in his own right would be the owner of the buildings, though a formal deed of title may not have been executed and registered. Section 32 would apply for the purpose of providing depreciation to be worked out in accordance with the law - For removal of doubts the legislature has provided that the building includes roads at which the depreciation is admissible. Following CIT vs. Vegetable Products Ltd. [1973 (1) TMI 1 - SUPREME Court] - if the court finds that the language of a taxing provision is ambiguous or capable of more meanings than one, then the court has to adopt that interpretation which favours the assessee, more particularly so where the provision relates to the imposition of penalty - The CIT(A) was correct in taking one view - Decided against Revenue. - ITA No. 1184/Hyd/2013, ITA No. 1185/Hyd/2013, ITA No. 1186/Hyd/2013, ITA No. 1187/Hyd/2013, ITA No. 1188/Hyd/2013, ITA No. 1189/Hyd/2013 - - - Dated:- 16-1-2014 - Shri Chandra Poojari And Smt. Asha Vijayaraghavan,JJ. For the Appellant : Sri P. Soma Sekhar Reddy For the Respondent : Sri I. Rama Rao ORDER Per Chandra Poojari, AM: The above six appeals by the Revenue are di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Addl. CIT (2017) 7 TMI 437 (Delhi). l) CIT v. Mother Hospital (P) Ltd. (2005) 145 taxmann. com 444 (Ker.). m) Rajshree Roadways v. Union of India (2003) 129 Taxman 663 (Raj.). 5. The learned CIT(A) observed that though the NHAI remains legal owner of the site with full powers to hold, dispose of and deal with the site consistent with the provisions of the agreement, the assessee had been granted not merely possession but also right to enjoyment of the site and NHAI was obliged to defend this right and the assessee has the power to exclude others. Being so, the assessee is entitled for depreciation. Against this, the Revenue is in appeal before us. 6. We have heard both the parties and perused the material on record. In our opinion, this issue is squarely covered by the order of the Tribunal in the following cases: a) Reliance Ports and Terminals Ltd., in ITA Nos. 1743 to 1745/Mum/07, dated 26.11.2007 (Mum). b) Ashoka Buildcon Ltd., in ITA No. 1302/PN/09, dated 20.3.2012. c) Kalyan Toll Infrastructure Ltd., in ITA Nos. 201 247/ Ind/2008, dated 14.12.2010. d) Dimension Construction (P.) Ltd., in ITA Nos. 222, 233 857/PN/2009, dated 18.3.2011. e) Ashoka I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court allowed the appeal and set aside the judgment of the High Court and allowed the depreciation on the property. 9. The Hon'ble Apex Court in the case of R.B. Jodha Mal Kuthiala (supra) had also held as under: "Ownership may be described as the entirety of the powers of use and disposal allowed by law .... The owner of a thing is; not necessarily the person who at a given time has the whole power of use and disposal; very often there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it; and he will be the owner even if the immediate power of control and use is elsewhere." 10. Further, in the case of CIT v. Podar Cement (P.) Ltd. (supra) the Hon'ble Apex Court considered the meaning of the word "owner" in s. 22 of the Income-tax Act, 1961 and held that the owner is a person, who is entitled to receive income from the property in his own right. The Supreme Court held that though under the common law "owner" means a person, who has got valid title legally conveyed to him after complying with the requirements of law, such as the Transfer of Property Act, the Registration Act etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g all the previous cases decided by it, the Supreme Court considered the term "owned" as occurring in Section 32 (1) of the Act and held that it must be assigned a wider meaning. The Supreme Court held that anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded there from and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings, though a formal deed of title may not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act etc. The person, who having acquired possession over the building in his own right, uses the same for the purposes of the business or profession though a legal title has not been conveyed to him, but nevertheless is entitled to hold the property to the exclusion of all others. 24. The Supreme Court further held that depreciation generally speaking is an allowance for the diminution in the value due to wear and tear of the capital asset employed by the assessee in his business. As for building, depreciation is the measurement of wearing out through consumption or use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred on BOT Project is allowable as amortization and not as depreciation whereas it is the case of the department that neither the amortization nor the depreciation is allowable as deduction. The main argument of the department is that the assessee should have claimed deduction under section 80IA and not as deduction towards revenue expenditure. In our considered opinion, the assessee can claim deduction under section 80IA only if the assessee carries on eligible business as specified in section 80IA of the Act. However, the issue before us is relating to allowability of the expenditure incurred on BOT Project on its amortization and not about the eligibility of deduction under section 80IA of the Act. On similar and identical issue, the co-ordinate Bench of the Tribunal in the case of Nyse Infrastructure (supra) held that the assessee has to be given deduction either of depreciation, or cost of construction as revenue expenditure or in the form of amortization of expenditure by following the judgment in the case of Madras Industrial Investment Corporation (supra). It is well settled that the Co-ordinate Bench's decision is binding and the same has to be followed in deciding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the assessee towards BOT project should be looked upon as revenue expenditure. Our view is fortified by the decision of the Apex Court in the case of CIT vs. Madras Auto Services Limited (supra) relied on by the learned counsel for the assessee. Once we held that the said expenditure is to be treated as revenue expenditure, consequently, the assessee is eligible to amortize the expenditure relating to BOT Project for the period of 17/7 years. In view of the above, after considering the totality of facts and the circumstances of the case, we allow the claim of the assessee with regard to the amortization expenditure incurred on BOT Projects as revenue expenditure Since we allowed the ground of the assessee with regard to the allowability of amortization of the expenditure, the ground raised by the revenue in challenging the findings of the CIT (A) in allowing the depreciation on the infrastructure facilities, stands rejected. 12. The other ground raised by the assessee remained to be adjudicated upon is with regard to the treatment of interest on deposits as income from 'other sources' and not as 'business income' and also with regard to the benefit of netting the interest ..... 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