TMI Blog2014 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... 759 of 2013 - - - Dated:- 23-1-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Petitioner : Mr. KM Parikh, Advocate For the Respondent : Mr. B. S. Soparkar, Advocate ORDER (Per : Honourable Mr. Justice Akil Kureshi) Revenue is in appeal against the judgement of the Income Tax Appellate Tribunal dated 22.3.2013 raising following questions for our consideration : (1) Whether the ITAT was justified in law in allowing depreciation @100% on temporary structures of Amul Parlours for A.Y. 200607 without appreciating the fact that Amul parlours had sturdy structures due to use of concrete and tiles and cannot be said to be having useful life of one year only and further without appreciating the fact that the assessee its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the assessee, the arrangement between the assessee and AUDA was purely temporary in nature. The assessee did not derive any enduring benefit from putting up such construction. He therefore, contended that in view of the decision of the Supreme Court in case of Commissioner of Incometax v. Madras Auto Service (P) ltd. reported in 233 ITR 468, in any case the expenditure would be revenue in nature. 6. We notice that under an agreement dated 16.9.2002, the assessee was given certain rights by the AUDA to use land on the terms and conditions set out therein. Conditions of the said agreement relevant for our purpose read as under : 1. The second part shall be permitted access to the garden plot for the purpose of beautif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngement, it will be entitled to do so without paying any compensation whatsoever in the second part. 17. The party of the second part will not implement any development or construction in the assignment area without taking into confidence of AUDA. 7. Combined reading of the said conditions would establish that the assessee had the right to use the land for putting up its parlours for a period of five years. Thereafter, only upon mutual agreement between the assessee and the AUDA, the period could be extended. During currency of the period of the agreement, the assessee had to maintain the garden and permit full access to the members of the public. The assessee did not have any right to develop any part of the land or put up constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case also, since the asset created by spending the said amounts did not belong to the assessee but the assessee got the business advantage of using modern premises at a low rent, thus saving considerable revenue expenditure for the next 39 years, both the Tribunal as well as the High Court have rightly come to the conclusion that the expenditure should be looked upon as revenue expenditure. 9. We may also refer to the decision of Madras High Court in case of Commissioner of Incometax v. TVS Lean Logistics Ltd. reported in (2007) 293 ITR 432 (Mad) in which also the Court held that construction of building on a leasehold land resulted into assessee only a business advantage and the assessee cannot be stated to have acquired any cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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