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TMI Blog2019 (8) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... to the claim were furnished by the assessee and such details were so fundamental to the genuineness and bona fide of the claim that the mere furnishing of those particulars made the claim vulnerable. In the present case, we find that the facts are starkly different. The Revenue had itself accepted that there was a doubt and that is why the clarification of 2014 was issued. Had it been so cut and dried there was no occasion for the Board to have issued the clarification and infact, this is precisely what weighed with the Commissioner, Income Tax, Panchkula and Income Tax Appellate Tribunal, Chandigarh. In the circumstances of the case we are not able to find any fault with the judgment and orders of the Courts below. No other question of law arises. - ITA No.19 of 2019 (O&M) - - - Dated:- 23-7-2019 - MR AJAY TEWARI AND MR HARNARESH SINGH GILL, JJ. For The Appellant : Mr. Yogesh Putney, Advocate And Mr. Ajiteshwar Singh, Advocate ORDER AJAY TEWARI, J. (Oral) 1. This appeal has been filed under Section 260A of the Income Tax Act, 1961 (for short 'the Act') against the concurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as 'assessee'), in terms of concessionaire agreement with Government or its agencies is required to construct, develop and maintain the infrastructural facility of roads/highways which, inter-alia, includes laying of roads, bridges, highways, approach roads, culverts, public amenities etc. at its own cost and its utilization thereof for a specified period. In lieu of consideration of the expenditure incurred on construction, operation and maintenance of the infrastructure facility covered by the period of the agreement, the assessee is accorded a right to collect toll from users of such facility. The expenditure incurred by such assessee on development and construction of such infrastructural facility are capitalized in the accounts. It is seen that in returns-of-income, assessees are generally claiming depreciation on such capitalized expenditure treating it as an 'intangible asset' in terms of section 32(1) (ii) of the Act while in assessments, such claims are being disallowed by the Assessing Officer on the grounds that such infrastructural facility is not owned, wholly or partly, by the taxpayer which is an essential condition for claiming depreciation and fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cost of construction on development of infrastructure facility of roads/highways under BOT projects may be amortized and claimed as allowable business expenditure under the Act. 6. The amortization allowable may be computed at the rate which ensures that the whole of the cost incurred in creation of infrastructural facility of road/highway is amortized evenly over the period of concessionaire agreement after excluding the time take for creation of such facility. 7. In the case where an assessee has claimed any deduction out of initial cost of development of infrastructure facility of roads/highways under BOT projects in earlier year, the total deduction so claimed for the Assessment Years prior to the Assessment Year under consideration maybe deducted from the initial cost of infrastructure facility of roads/highways and the cost 'so reduced' shall be amortized equally over the remaining period of toll concessionaire agreement. 8. It is hereby clarified that this Circular is applicable only to those infrastructure projects for development of road/highways on BOT basis where ownership is not vested with the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquire the property. On 18.09.2004 i.e. after about 5 months the property was sold to a Company viz. Hindustan Udyog Limited for a consideration of ₹ 4.5 crores but only an agreement of sale was executed, possession was not given nor was any sale deed executed. The Assessing Officer found that the property was residential in nature and had not been put to use for the purpose of the assessing business. From these facts the Assessing Officer concluded that the Assessee had kept the property for four months or so and had entered into an agreement to dispose of the same which indicated a motive to earn short term gain and not any intention to use the property for the purpose of the business. He also noticed that the building cost of which depreciation was claimed including the cost of land on which no depreciation was allowed and it was in those circumstances that he did not allowed the depreciation initiated the penalty proceedings. The Commissioner Income Tax appeals upheld the penalty but the Income Tax Appellate Tribunal allowed the appeal of the Assessee and that is how the Revenue was before the High Court. The main ground taken by the Tribunal was that since no sale deed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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