9911796707
TMI Blog2017 (2) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... ection - appellant prays that the entire cost incurred for construction of Project Road may be allowed as deduction treating the same as revenue expenditure while computing the total income - As 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 back to the file of the AO. The assessee shall be at liberty to raise all the legal and factual issue before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 law, the CIT(A) has erred in treating the Toll road i .e. the National Highway as Plant and machinery belonging to the assessee instead of the Government Land, disregarding the fact that the stand adopted by the AO has been well endorsed by the Bombay High Court in the case of M/s North Karnataka Expressway Limited, a sister concern belonging to the assessee company being in the same line of business, that the National Expressway cannot be deemed to be treated as the Plant and Machinery belonging to the assessee company in light of the fact that the Toll Road ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed 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 the action of the AO and held that assessee was not entitled for the benefit of depreciation. Hon'ble High Court relied upon its another judgement rendered in the case of North Karnataka Expressway Ltd vs CIT 272 CTR 225 (Bom). 5. In the meanwhile, AO recorded Reasons u/s 147 and issued notice u/s 148 to the assessee on the ground that benefit of amortisation was wrongly computed and allowed to the assessee. Thereafter, the AO passed reassessment order u/s 147 r.w.s. 143(3) wherein the benefit of amortisation granted in the original assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for construction of Project Road amounting to ₹ 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 No. 1, on the facts and circumstances of the case, the appellant prays that, the depreciation may be granted treating the right to set up infrastructure facility being license/business of commercial rights, as intangible asset in terms of the provisions of Section 32(1)(ii) and the appellant may be granted the depreciation treating the said right as intangible right at the applicable rate. The appellant prays that the appellant be granted depreciation of ₹ 4,09,08,098/-. 3. Without prejudice to Ground No. 1 to 2 above , on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 back to the file of the AO. The assessee shall be at liberty to raise all the legal and factual issue before the AO. The AO shall examine all the issues raised in the Cross Objection and decide them after taking into account all the submissions and evidences, as may be placed on record by the assessee. With these directions, the grounds raised in the Cross Objection are restored to the file of the AO for their appropriate adjudication and these may be treated as allowed, for statistical purposes. 11. In the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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