9911796707
TMI Blog2021 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the assessee for construction of Amritsar Bus Terminal project on build, operate and transfer (BOT) basis in the facts and circumstances of the case. 5. The brief facts relating to the issue questioned by the appellant-revenue are thus, the assessee is a company and engaged in the business of as promoters, builders, developers and undertakes infrastructure projects on BOT, BOLT or turnkey basis. The assessee stood successful builder for construction of Amritsar Bus Terminal on the basis of BOT. The assessee formed as special purpose vehicle (SPV) for execution of said infrastructure project. The assessee entered into a concession agreement with the Government of Punjab for carrying the execution, operation and maintenance of the said project. The assessee has been given the right to collect adda fees from the buses and vehicles using the bus terminal which enables the assessee to recoup the costs which has incurred for construction of the said bus terminal. According to the AO, the assessee claimed depreciation on project costs at Rs. 2,50,16,203/- in the books of account but claimed depreciation @ 25% at Rs. 4,66,91,811/- in the computation. The AO allowed amortization of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the right to collect toll is capital expenditure creating an intangible asset u/s. 32(1)(ii) of the Act making eligible for claiming depreciation on such intangible asset. This Tribunal while holding so placed reliance on the decision of Mumbai Bench of Tribunal in the case of ACIT Vs. West Gujarat Expressway Ltd. reported in (2015) 57 taxmann.com 384 (Mumbai-Trib.). We find that the CIT(A) while holding the assessee is entitled to claim depreciation placed reliance on the order of this Tribunal in the case of Ashoka Infrastructure Ltd. (supra). 9. Coming to the decision of Special Bench of Hyderabad Tribunal in the case of ACIT Vs. Progressive Construction Ltd. reported in 92 taxmann.com 104 (Hyderabad-Trib.), we note that the assessee therein had entered into a Concession Agreement with Government of India for four laning of National Highway on BOT basis. The AO held the assessee had no right on road, except, for maintaining road and receiving toll collections during concession period. The AO was of the opinion the depreciation claimed was neither a building nor a plant and machinery, thereby denied depreciation. The CIT(A) basing on the order of Hyderabad Bench of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictly apply in interpreting the definition of intangible asset as provided by Explanation 3(b) of section 32, at the same time, held that even applying the said principle 'goodwill' would fall under the expression "any other business or commercial rights of similar nature". Thus, as could be seen, even though, 'goodwill' is not one of the specifically identifiable assets preceding the expressing "any other business or commercial rights of similar nature", however, the Hon'ble Supreme Court held that 'goodwill' will come within the expression "any other business or commercial rights of similar nature". Therefore, the contention of the learned Senior Standing Counsel that to come within the expression "any other business or commercial rights of similar nature" the intangible asset should be akin to any one of the specifically identifiable assets is not a correct interpretation of the statutory provisions. Had it been the case, then 'goodwill' would not have been treated as an intangible asset. The Hon'ble Delhi High Court in case of Areva T and D India Ltd. (supra), while interpreting the aforesaid expression by applying the principles of ejusdem generis observed, the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question framed by the Special Bench as under:- The expenditure incurred by the assessee for construction of road under BOT contract by the Government of India has given rise to an intangible asset as defined under Explanation 3(b) r/w section 32(1)(ii) of the Act. Hence, assessee is eligible to claim depreciation on such asset at the specified rate." 10. In the light of above, we note that the assessee also incurred expenditure in constructing Amritsar Bus Terminal on BOT basis and to recoup the said investment, the assessee was allowed to collect adda fees from the users of the said bus terminal. In our view, the said right is business or commercial right in terms of section 32(1)(ii) of the Act, is an intangible asset, therefore, the assessee is entitled to claim depreciation. We find that the facts and circumstances of the case made out in the case of Progressive Construction Ltd. (supra) before the Hyderabad Bench of Tribunal are identical and the issue decided therein is similar to the issue on hand before us. Therefore, the assessee is eligible to get depreciation u/s. 32(1)(ii) of the Act. 11. Further, this Tribunal in the case of ITO Vs. M/s. Ashoka Highways (Durg) Li ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
