TMI Blog2021 (1) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Central Government would be eligible for claim of depreciation in respect of its intangible rights i.e right to collect toll under Sec. 32(1)(ii) - See Progressive Construction Ltd. [ 2017 (3) TMI 1167 - ITAT HYDERABAD] There does not appear to be any dispute about the fact that the Assessing Officer s assessment order; take for instance, the order dated 30th December, 2017 has not controverted the assessee s plea that Clause 3.1 of the concession agreement has resulted in the NHAI granting concessionary rights to reconstruct, operate and maintain the corresponding national highway project. We wish to repeat here that the Assessing Officer has only quoted the Board s Circular No.9/2014 dated 23rd April, 2014 in favour of am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings u/s 143(3) of the Income Tax Act, 1961 (in short the Act ). 2. With the consent of both the parties, delay of 62 and 19 days; appeal wise; respectively in filing the appeals stated to attributable to communication gap is condoned in the larger interest of justice. These two cases are now taken up for adjudication on merits. Heard both the parties. Case files perused. 3. The assessee s identical solitary substantive grievance raised in these two appeals challenges correctness of both the lower authorities action disallowing its depreciation claim amounting to ₹ 6,08,23,278/- and ₹ 137,66,31,766/-, assessment year wise; respectively in the course of assessment and upheld in the CIT(A) s lower appellate order(s) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.3. learned CIT, DR strongly supported both the lower authorities action in disallowing the assessee s claim of depreciation. He sought to buttress the point that assessee can neither be held as owner of the concerned road project nor has it acquired any commercial or business rights for its exclusive usage so as to claim depreciation. His next argument is that the hon ble Bombay high court in North Karnataka Expressways Ltd. Vs. CIT (2015) 372 ITR 145 (Bom.) has made it clear that an assessee who has executed such a BOT agreement with NHAI cannot be held as owner of the corresponding asset entitling it to claim depreciation. Mr. Sai s vehement contention accordingly is that the Tribunal s Special Bench decision may require re-considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of India Act. It is therefore sufficiently clear that as against the facts of the said case, this assessee has raised depreciation claim on its license to collect toll held as an intangible asset only. 4.1. Coming to the exclusive usage part; we see no material on record which would indicate that anybody other than the assessee is entitled to dilute its rights to construct, operate, maintain the project in lieu of the toll collections right for the specified agreement period. We therefore hold that the assessee s right to collect toll would form an exclusive right in the nature of license eligible to be treated as an intangible asset as per Special Bench s decision (supra). We thus decline the Revenue s arguments supporting the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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