TMI Blog2021 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is entitled for depreciation at the rate of 10%. - T.C.A.Nos.678, 679 of 2009 And 446 & 447 of 2010 - - - Dated:- 29-6-2021 - Hon'ble Mr. Justice M.Duraiswamy And Hon'ble Mrs.Justice R.Hemalatha For the Appellant : Ms.V.Pushpa, Junior Standing Counsel For the Respondent : Mr.Kaushik for Mr.S.Sridhar COMMON JUDGMENT M.DURAISWAMY, J. Challenging the order passed in I.T.A.No.2082/Mds/2008 on the file of the Income Tax Appellate Tribunal, C Bench, Chennai, the Revenue has filed the appeal in T.C.A.No.678 of 2009. Challenging the order passed in I.T.A.No.817/Mds/2007 on the file of the Income Tax Appellate Tribunal, C Bench, Chennai, the Revenue has filed the appeal in T.C.A.No.679 of 2009. Challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law: Whether on the facts and circumstances of the case, the Tribunal was right in holding that roads developed and maintained by the assessee by agreement with the Government on the State/National Highway is eligible for depreciation as building ? 4.When the appeals were taken up for hearing, Ms.V.Pushpa, learned standing counsel for the appellant-Revenue fairly submitted that the question of law that has been raised in the above appeals was already decided, against the Revenue and in favour of the assessee, by the Division Bench of this Court in the judgment made in T.C.A.Nos.220 to 225 of 2018 dated 19.01.2021 [The Commissioner of Income Tax, Corporate Circle 3, Chennai-34 Vs. M/s.Tamil Nadu Road Development Company Ltd., Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed depreciation at 25% by treating investment in road as an intangible property. The CIT(A) partly allowed the appeals and directed the Assessing Officer to allow depreciation at 10% on the road by treating it as a 'building'. The claim made by the assessee for grant of depreciation at 25% by treating investment in road as an intangible property was rejected. 16.The Revenue carried the matter by way of appeals before the Tribunal. However, the Tribunal, by the impugned common order, rejected the appeals and in doing so, followed its earlier decision dated 24.10.2008 in the assessee's own case for the assessment years 2003-04 and 2004-05 respectively made in ITA.Nos.2082/Mds/2008 and 817/Mds/2007. In paragraph 6 of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structural development in execution of agreement with the National Highways Authority or as in the present case, with the State Government and had constructed a road on Build, Operate and Transfer (BOT) basis on the land owned by the Government, the 11/31 https://www.mhc.tn.gov.in/judis/ TCA.Nos.220 to 225 of 2018 assessee could not claim depreciation on the toll road so constructed and operated by treating it as a building under Section 32 of the Act. 20.The learned Junior Standing Counsel has also placed reliance on the decision of the High Court of Delhi in the case of Moradabad Toll Road Co. Ltd. Vs. ACIT [reported in (2014) 52 Taxmann. com 21] to support the proposition that toll road would not qualify as a plant so as to entitle th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, in the said decision, the Court held that the assessee definitely invested in the project of construction development and maintenance of the National Highway and such of the assets in the form of building and plant and machinery etc., and that the claim for depreciation could be validly raised and granted. 23.In fact, the decision of the Bombay High Court in the case of North Karnataka Expressway Ltd., would lend support to the case of the assessee as argued by the assessee before the Assessing Officer by claiming it as plant and machinery. However, since the assessee is not on appeal against the said finding, we are of the view that the decision of the Bombay High Court in the case of North Karnataka Expressway Ltd., does not advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, they had a right to restrict the people without non payment of toll tax and that if the definition, which was given under the Act was looked into, even a development made while occupying the premises and development of a road was the main agreement between the parties and that therefore, the argument of the Revenue that it would not qualify for depreciation was not sustainable. Accordingly, the view taken by the Tribunal was confirmed. 26.The special leave petition filed by the Revenue against the decision of the Rajasthan High Court in the case of GVK Jaipur Expressway Ltd., was dismissed by the Hon'ble Supreme Court as reported in (2018) 100 Taxmann.com 96. 27.So far as decision of the Bombay High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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