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TMI Blog2018 (3) TMI 1912X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The assessment has been completed as pointed earlier under Section 153C r.w.s 143(3) of the Act. In the first instance, we hold that the assessee is entitled to the claim of depreciation at 25% on the right to collect toll being an intangible asset. Accordingly, we uphold the order of Commissioner of Income Tax (Appeals) in this regard and also uphold the direction to the Assessing Officer to withdraw the deduction allowed on amortization of the costs for assessment year 2005-06. It may be pointed out that similar issue also arose before the Tribunal in the case of Ashoka Infrastructure Ltd., [ 2017 (6) TMI 1167 - ITAT PUNE ] relating to assessment years 2006-07 to 2011- 12. Similar issue arose in the said appeal and was decided in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot accepted the decision of the ITAT, Pune and an appeal has been filed under Section 260A of the Act before the Hon ble Bombay High Court. 4. The appellant craves to add, amend or delete any of the above grounds. 4. The assessee in C.O.No.114/PUN/2017 has raised the following Cross-Objections: The learned CIT(A) erred in not deciding the ground Nos.1, 2 and 3 relating to the validity of the Notice issued under Section 153C, the proceedings for assessment under Section 153C r.w.s. 143(3) and the assessment order passed under Section 153C r.w.s. 143(3), on the ground that, appellant s appeal is allowed on merits. Therefore, it is prayed to allow appellant s ground challenging the validity of Notice under Section 153C, assessment proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td., had assigned all its rights and obligation under the said contract in favour of the company. The company was entitled to collect toll tax for 3999 days after Toll notification date i.e. from 24th May 2014 till 6th May 2015. Thus assessment year 2005-06 was the first year of operation of the assessee s business activity. As per director s report, the assessee Company had commissioned the project on 23rd May 2004. The assessee company, as per directions of the PWD, MP, was collecting Toll only at one plaza instead of 3 toll plazas and the company was in the process of ascertaining the compensation receivable from PWD for loss of toll. In the return of income the assessee had claimed depreciation on intangible asset being right to collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the decision becomes binding as far as the Assessing Officer was concerned. The Assessing Officer rejecting the said plea of the assessee and in view of the fact that the order of CIT / ITAT were subjudiced before the higher Appellate Forum held that the matter had not reached finality. Hence, the depreciation claimed on the right to collect toll was held not to be allowable to the assessee. 8. The Commissioner of Income Tax (Appeals) first decided the validity of the notice issued under Section 153C of the Act and held the same against the assessee. In response to the issue raised on merits, the Commissioner of Income Tax (Appeals) observed that the Tribunal in assessee s own case in ITA Nos.185 and 186/PN/2012 for assessment years 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting from assessment years 2005-06 to 2011-12. The assessment has been completed as pointed earlier under Section 153C r.w.s 143(3) of the Act. In the first instance, we hold that the assessee is entitled to the claim of depreciation at 25% on the right to collect toll being an intangible asset. Accordingly, we uphold the order of Commissioner of Income Tax (Appeals) in this regard and also uphold the direction to the Assessing Officer to withdraw the deduction allowed on amortization of the costs for assessment year 2005-06. The relevant portion of the order of the Tribunal are reproduced in the order of the Commissioner of Income Tax (Appeals) at Pages 11 and 12 and the for the sake of brevity, though we are referring to the same but are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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