TMI Blog2010 (12) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... ly used for business purposes. The personal use of vehicles is also not ruled out, therefore, keeping in view the totality of facts and circumstances, only 20% of the claimed expenses are disallowed, consequently, this ground of the assessee is party allowed. adhoc disallowance - HELD THAT:- the disallowance is restricted to 50% of the claimed amounts, therefore, this ground of the assessee is partly allowed. Finally, the appeals of the assessee are partly allowed. - SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER For the Appellant : Sh. S.S. Solanki, CA For the Respondent : Sh. K.K. Singh, CIT, DR O R D E R PER JOGINDER SINGH, Judicial Member These appeals are by the assessee against the different orders of the learned CIT(A)-II, Indore, dated 22.1.2008 22.2.2008, respectively, wherein the common ground raised is that on the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred in not allowing depreciation on intangible asset i.e. on the right to collect tax at ₹ 1,47,46,823/- which requires to be deleted and further erred in maintaining adhoc disallowance out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assets, such percentage on the written down value thereof as may be prescribed67:] 68[***] 69[Provided 70[***] that no deduction shall be allowed under this clause in respect of- (a) any motor car manufactured outside India, where such motor car is acquired by the assessee after the 28th day of February, 1975 71[but before the 1st day of April, 2001], unless it is used- (i) in a business of running it on hire for tourists ; or (ii) outside India in his business or profession in another country ; and (b) any machinery or plant if the actual cost thereof is allowed as a deduction in one or more years under an agreement entered into by the Central Government under section 42 :] 72[Provided further that where an asset referred to in clause (i) or clause (ii) 73[or clause (iia)], as the case may be, is acquired by the assessee during the previous year and is put to use for the purposes of business or profession for a period of less than one hundred and eighty days in that previous year, the deduction under this sub-section in respect of such asset shall be restricted to fifty per cent of the amount calculated at the percentage prescribed for an asset under clause (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such deduction shall be apportioned between the predecessor and the successor, or the amalgamating company and the amalgamated company, or the demerged company and the resulting company, as the case may be, in the ratio of the number of days for which the assets were used by them.] 78[Explanation 1.-Where the business or profession of the assessee is carried on in a building not owned by him but in respect of which the assessee holds a lease or other right of occupancy and any capital expenditure is incurred by the assessee for the purposes of the business or profession on the construction of any structure or doing of any work in or in relation to, and by way of renovation or extension of, or improvement to, the building, then, the provisions of this clause shall apply as if the said structure or work is a building owned by the assessee. Explanation 2.-For the purposes of this 79[sub-section] written down value of the block of assets shall have the same meaning as in clause* (c) of sub-section (6) of section 43.] 80[Explanation 3.-For the purposes of this sub-section, 80a[the expressions assets and block of assets ] shall mean- (a) tangible assets, being buildings, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks of the assessee. Explanation.-For the purposes of this clause,- (1) moneys payable in respect of any building, machinery, plant or furniture includes- (a) any insurance, salvage or compensation moneys payable in respect thereof; (b) where the building, machinery, plant or furniture is sold, the price for which it is sold, so, however, that where the actual cost of a motor car is, in accordance with the proviso to clause (1) of section 43, taken to be twenty-five thousand rupees, the moneys payable in respect of such motor car shall be taken to be a sum which bears to the amount for which the motor car is sold or, as the case may be, the amount of any insurance, salvage or compensation moneys payable in respect thereof (including the amount of scrap value, if any) the same proportion as the amount of twenty-five thousand rupees bears to the actual cost of the motor car to the assessee as it would have been computed before applying the said proviso; (2) sold includes a transfer by way of exchange or a compulsory acquisition under any law for the time being in force but does not include a transfer, in a scheme of amalgamation, of any asset by the amalgamating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the owner of the asset on which depreciation is claimed and the claim of the depreciation was not made in the original return and also the assessee never disclosed his intangible asset before the department. Even the ld. CIT(A) has taken a narrow interpretation of the definition given in explanation 3(b) by ignoring the meaning of or any other business or commercial right of similar nature . Similar nature does not mean exactly same type of activity rather it means any intangible asset which is of similar nature. The ld. CIT(A) took this definition as exhaustive definition whereas in our opinion, this is inclusive definition in which intangible assets or commercial rights of similar nature are also included. In the present appeal, the licence was granted to the assessee by the govt. to collect the toll on a road which was constructed and maintained by the assessee on build, operate and transfer (BOT) basis in terms of agreement for the fixed period of 5109 days, therefore, it is an intangible asset eligible for depreciation as prescribed u/s 32(1)(ii) of the Act. The assessee claimed the cost of construction, incurred by the assessee, on the construction of road/other st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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