TMI Blog2014 (1) TMI 1900X X X X Extracts X X X X X X X X Extracts X X X X ..... nce following the decision of the Tribunal in the assessee s own case for assessment year 2006-07 [ 2011 (9) TMI 1019 - ITAT PUNE] . In view of the aforesaid precedent, the action of the CIT(A) is hereby affirmed and the Ground of Appeal No.3 raised by the Revenue is dismissed. Disallowance of expenses on telephone, travel and vehicles on an ad-hoc basis on the plea of personal element - HELD THAT:- We find no reason to interfere with the order of the CIT(A) inasmuch as disallowance was made by the Assessing Officer merely on the basis of surmises and conjectures. In the absence of any specific evidence of personal or non-business use, ad-hoc disallowances are not maintainable. Thus, the order of the CIT(A) is hereby affirmed and Revenue fails on the Ground of Appeal No. 4 also. Additional Ground of Appeal admitted by the CIT(A) as the claim was not made in the return of income filed by the assessee - Deduction u/s 35DD denied as claim not made in the return of income - such a claim was not made in the return of income but was preferred by the assessee in the course of assessment proceedings by way of a written communication - HELD THAT:- In our considered opinion, the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Grounds of Appeal:- 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in directing the Assessing Officer to allow depreciation under section 32(i)(ii) @ 25% of ₹ 9,37,42,685/- to the assessee while withdrawing the deduction of ₹ 7,33,36,186/- allowed by the Assessing Officer by spreading over the construction cost of infrastructure facility over the toll collection period. 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that right to collect toll is an intangible asset under section 32(i)(ii) of the Act and the assessee is therefore eligible for deduction under section 32(i)(ii) of the Act. 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made by the Assessing Officer on account of unpaid employees contribution to EPF without appreciating that section 36(i)(va) r.w.s. 2(24)(x) makes no allowance for deduction if not paid within the due date. 4. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition made on account of the estimated pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Against such action of the CIT(A), Revenue is in appeal before us on the aforestated Grounds of Appeal. 4. In Grounds of Appeal Nos. 1 and 2, the issue relates to assessee s claim for depreciation u/s 32(1)(ii) of the Act on the infrastructure construction cost capitalized under the head Right to collect toll . The assessee builds various infrastructure facilities involving development, operation and maintenance of roads/bridges on Build, Operate and Transfer (BOT) basis. On the expenditure incurred on cost of construction of such infrastructure facility, assessee claimed depreciation @ 25% amounting to ₹ 9,37,42,685/- in terms of section 32(1)(ii) of the Act treating such license/Right to collect toll as an intangible asset. The Assessing Officer disallowed the claim and instead allowed deduction for the proportionate cost of construction of the infrastructure facility, spread over the toll collection periods. The CIT(A), however, following the decision of the Tribunal in the assessee s own case for assessment year 2004-05 vide ITA No.1302/PN/2009 dated 20.03.2012 allowed the claim of the assessee for depreciation u/s 32(1)(ii) of the Act. Aggrieved with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee s claim for deduction u/s 35DD of the Act for ₹ 23,00,000/-. By way of Ground of Appeal Nos. 5 and 6, the plea of the Revenue is that the CIT(A) erred in admitting such claim of deduction which was not made in the return of income filed by the assessee. Notably, such a claim was not made in the return of income but was preferred by the assessee in the course of assessment proceedings by way of a written communication dated 07.12.2007. The Assessing Officer rejected the claim of the assessee on the ground that in view of the judgment of the Hon ble Supreme Court in the case of Goetze India vs. CIT, 284 ITR 323 (SC) such a claim could not be considered as it was not made in the return of income. The assessee carried the matter in appeal before the CIT(A) and raised an Additional Ground of Appeal claiming deduction u/s 35DD of the Act of ₹ 23,00,000/-. The CIT(A) admitted the Additional Ground of Appeal raised by the assessee following the judgment of the Bombay High Court in the case of CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd. (2012) 349 ITR 336 (Bom). 10. On this aspect, the only point raised by the Revenue is that the Additional Ground of Appeal could no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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