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TMI Blog2017 (2) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... nue on the following grounds:- 1 . "On the facts and in the circumstances of the case and in law, the CIT(A) has er red in allowing the claim of depreciation on the toll road, to the assessee, dis regarding the fact that the AO has rightfully allowed the amortization claim of the toll road expenses for 5 months to the assessee since the toll road started operating from 22.10.2006. 2 . On the facts and in the circumstances of the case and in law, the CIT(A) has erred in treating the toll road being the national Highway belonging to the Government of India as if it is the capital as set owned and acquired by the assessee, so as to allow the assessee claim of depreciation on it. 3 . On the fact sand in the circumstances of the case and in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income, assessee claimed depreciation on the expenditure incurred on construction of toll road. The AO, in the original assessment order passed u/s 143(3) dated 29- 12-2009 disallowed the depreciation inter-alia on the ground that assessee was not owner of the toll road. But he allowed the alternative claim of the assessee for amortisation of expenses. Thus, AO allowed alternative deduction of amortisation but denied the benefit of depreciation. Against the original assessment order, assessee went in appeal wherein the claim of depreciation was allowed by the Tribunal. Against the order of the Tribunal, the Revenue filed appeal before the Hon'ble High Court. Hon'ble High Court reversed the order of the Tribunal and upheld t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that depreciation is not allowable, the issue before us stands covered against the assessee for the reasoning given by the Hon'ble High Court in its order read along with the judgement relied upon by the Hon'ble High Court in its order. Thus, respectfully following the order of the Hon'ble High Court, we allow the appeal filed by the Revenue. 7. Now we shall take up Cross Objections filed by the assessee on the following grounds:- 1. "On the facts and circumstances of the case the appellant prays that the entire cost incurred for construction of "Project Road" amounting to Rs. 32,72,64,781/- may be allowed as deduction treating the same as revenue expenditure while computing the total income. 2. Without prejudice to Ground N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er contra, the Ld. DR submitted that fairly speaking, these issues have not been examined properly so far. Therefore, if these issues are to be examined, then, these need to be sent back to the file of the AO for proper examination. 10. We have gone through the submissions made by both sides before us. It is noted that the claims raised before us are alternative to the main claim made by the assessee. Since the main claim of the assessee has been rejected, in all fairness, justice demands that assessee should be given an opportunity to make his alternative claim in accordance with law. Thus, taking into account the totality of facts and circumstances of the case, as have been brought before us, we find it appropriate to send these issues b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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