2013 (9) TMI 602 - AT - Income Tax

Allowance of depreciation - depreciation on toll road as building - ownership of the assets - Held that - Assessing Officer while framing original assessment has raised this issue, but learned counsel for the assessee categorically stated that this toll road was constructed on B.O.O.T basis, i.e., means build , own , operate and transfer . According to him, the entire responsibility for maintaining and operating this toll road for 31 years is on the assessee as he has to collect toll-fee. Once this concept of B.O.O.T has been accepted by the Government of India under infrastructure policy and the Government of Gujarat also entered in a joint venture with the assessee and formed the SPV, the question of ownership rest with the assessee for the purposes of claim of depreciation. Accordingly, this issue on merits is allowed in favour of the assessee. Considering the above decision of the Tribunal, the learned Commissioner of Income-tax (Appeals) has allowed the appeal of the assessee in its favour. In these circumstances, we do not find it necessary to interfere with his order - Decided against Revenue.

Issues Involved:
1. Deletion of addition on account of interest on deep discount bonds.
2. Deletion of addition on account of depreciation.
3. Validity of reassessment order.
4. Disallowance of expenditure on road overlay/renewal.
5. Allowability of depreciation on toll roads.
6. Initiation of proceedings under sections 147 and 148 of the Income-tax Act.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Interest on Deep Discount Bonds:
The Revenue contended that the Commissioner of Income-tax (Appeals) erred in deleting the addition of Rs. 5,26,43,488 made on account of interest on deep discount bonds. The Assessing Officer had disallowed the claim under section 43B of the Act, arguing that the interest was payable only on maturity and thus had not accrued. However, the Commissioner of Income-tax (Appeals) followed the Income-tax Appellate Tribunal's decision for the assessment year 2003-04, which held that the disallowance was incorrect. The Tribunal confirmed this view, stating that the interest payable on deep discount bonds was not in respect of loans or advances but deposits by financial institutions, thus not falling under section 43B.

2. Deletion of Addition on Account of Depreciation:
The Revenue also challenged the deletion of Rs. 14,67,03,030 on account of depreciation. The Assessing Officer had disallowed the claim, citing the Supreme Court's decision in Indore Municipal Corporation v. CIT, which stated that roads do not constitute buildings. However, the Commissioner of Income-tax (Appeals) and the Tribunal relied on the decision in Noida Toll Bridge Co. Ltd., which held that roads, bridges, culverts, wells, and tube wells are included under 'buildings' in Appendix I of the Income-tax Rules. The Tribunal further emphasized that the toll road was an integral part of the assessee's business activity and thus eligible for depreciation.

3. Validity of Reassessment Order:
The assessee challenged the reassessment order's validity, arguing that the Commissioner of Income-tax (Appeals) had not adjudicated this issue. Both parties agreed that the matter should be remitted back to the Commissioner of Income-tax (Appeals) for proper adjudication. The Tribunal directed the Commissioner of Income-tax (Appeals) to pass an appropriate order after considering the merits and hearing both parties.

4. Disallowance of Expenditure on Road Overlay/Renewal:
The assessee claimed Rs. 1,61,37,960 as expenditure for road overlay and renewal, which the Assessing Officer disallowed, considering it a provision rather than an actual expense. The Commissioner of Income-tax (Appeals) confirmed this view. The Tribunal upheld the disallowance, agreeing that the claimed amount was a provision and not an incurred expense.

5. Allowability of Depreciation on Toll Roads:
For the assessment year 2005-06, the Revenue challenged the allowance of Rs. 37,36,34,380 as depreciation on toll roads, arguing that toll roads are not covered under 'assets' in Appendix I and the ownership did not vest with the assessee. The Tribunal dismissed this ground, reiterating its earlier decision that toll roads qualify for depreciation as they are integral to the assessee's business and are considered 'buildings' under the Income-tax Rules.

6. Initiation of Proceedings under Sections 147 and 148 of the Income-tax Act:
The assessee's cross-objection for the assessment year 2005-06 challenged the initiation of proceedings under sections 147 and 148. The Tribunal noted that this issue was not raised before the Commissioner of Income-tax (Appeals) and remitted it back for consideration on merit.

Conclusion:
The Tribunal dismissed the Revenue's appeals for the assessment years 2002-03 and 2005-06. The assessee's appeal for the assessment year 2002-03 was partly allowed for statistical purposes, and the cross-objection for the assessment year 2005-06 was allowed for statistical purposes. The Tribunal confirmed the Commissioner of Income-tax (Appeals)'s decisions on the allowability of interest on deep discount bonds and depreciation on toll roads, and remitted the issues regarding the validity of reassessment and initiation of proceedings for further adjudication.

← Previous Next →