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TMI Blog2024 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... s extracted the relevant articles of lease of land by Noida elsewhere. The very basis of the enhancement by the ld. CIT(A) that the lands were transferred to the assessee by Noida is fallacious and completely in disregard to the relevant articles mentioned elsewhere. The lands were given on lease and, therefore, there is no question of ownership being transferred to the assessee and, therefore, there is no question of any addition on this account. Interest u/s 43B - HELD THAT:- Issue stands covered by the order of the Co-ordinate Bench of ITAT in assessee s own case [ 2023 (8) TMI 1510 - ITAT DELHI] from A.Y. 2006-07 to A.Y. 2011-12 provisions of section 43B(e) of the Act apply only to loans/borrowings from any financial institutions. It does not apply to the deep discount bonds issued to the public. In our considered opinion, the amount over and above the face value which is payable on maturity is nothing but the interest amount which accrues to the assessee every year and recognized by the assessee in its books of account. Therefore, the interest payable on deep discount bonds is to be allowed on accrual basis and not on payment basis. AO is directed to delete the same. Capital S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upholding the disallowance on account of unpaid interest of Rs. 1,30,14,412 made by the Ld. AO u/s 43B without appreciating that the provisions of section 43B were not applicable to the payment of interest. (Ground No. 13 of the AM) 6. That the Hon ble CIT(A) has erred upholding the finding of the Ld. AO that Appellant is not entitled to claim benefit of unahsorbed depreciation pertaining to earlier years. (Ground No. 14 of the AM) 7. That the Hon ble CIT(A) has erred in holding that the Appellant has received a capital subsidy of Rs. 10,02,09,78,602 being the value of land utilized and directing the same to be set-off against the value of block of assets to re-compute the amount of depreciation claim u/s 32 of the Act. (Ground Nos. 11,15 and 16 of the AM) 8. That the levy of interest u/s 234B of the Act is erroneous and deserves to be deleted. (Ground Nos. 17 and 18 of the AM) 9. That the levy of interest u/s 234C of the Act is erroneous and deserves to be deleted. (Ground Nos. 19 and 20 of the AM) 10. The above grounds of appeal are independent and without prejudice to one another. (Ground No. 21 of the AM) 3. In ITA No. 4419/Del/2018, the following concise grounds have been rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect set off of unabsorbed depreciation from earlier years. (G. No. 20 of the AM) 9. That the levy of interest u/s 234B of the Act is erroneous and deserves to be deleted. (Ground No. 21 of the AM) 10. That the levy of interest u/s 234C of the Act is erroneous and deserves to be deleted. (Ground No. 22 of the AM) 11. That the Ld. AO has erred in initiating the penalty proceedings u/s 271(1)(c) of the Act. (Ground No. 23 of the AM) 4. In ITA No. 4420/Del/2018, the following concise grounds have been raised by the assessee: 1. That the invocation of provisions of section 251(1)(a) of the Act and enhancement of Appellant s income by the Hon ble CIT(A) is invalid and contrary to the provisions of law. (G. No. 1 of the AM). 2. That the Hon ble CIT(A) has erred in upholding the action of the Ld. AO in bringing to tax the notional income on account of designated returns amounting to Rs. 502,78,96,600 where in fact, no income as arisen or accrued to the Appellant. (G. No. 3, 4 and 5 of the AM) 2.1. That without prejudice to the above, the Hon ble CIT(A)/Ld. AO have erred in not allowing the benefit of deduction u/s 80-IA of the Act on the designated returns charged to tax under the head In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor-15A, Noida-201301 Uttar Pradesh Certification (revised) of the Statement of Computation of 'Return in Arrears as on 31 March 2013 in pursuance of the Concession Agreement Dear Sir, 1. As required by you vide letter dated 28 August 2013 we have verified the Statement of Computation of 'Return in Arrears' as on 31 March 2013 (Statement ) prepared by the management based on the revised project cost. We understand that this certificate will over-ride the certificate as on 31 March 2013 issued by us dated 27 June 2013 as that was on the basis of provisional cost (i.e. without including any cost incurred from the commission date to 31 March 2013). The Statement (refer to Annexure-1) has been prepared in accordance with Article 14.2 read with Appendix F of the Concession Agreement dated 12 November 1997 entered into between New Okhla Industrial Development Authority (NOIDA ), Infrastructure Leasing Financial Services Limited ('Sponsor ) and Noida Toll Bridge Company Limited (the Company ), for the purpose of computation of recovery of total project cost and return of 20% thereon for the year ended 31 March 2013. 2. On the basis of our verification of the aforementione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e land and as the lands were transferred to commercially exploit for the purpose of development and that he assessee being the owner of the land, had not disclosed the same in the books of account. Therefore, the ld. CIT(A) ascertained the market value of the land by engaging a valuer for this purpose. 50. After arriving at the market value of the land, the ld. CIT(A) attributed a part of the same towards capital subsidy received to the extent the lands were utilized for the purpose of construction of the toll bridge. Balance amount, according to the ld. CIT(A), represented a compensation for possible or projected short fall in the revenue and treated the same as revenue subsidy and made enhancement of Rs. 1730.08 crores. 51. We have extracted the relevant articles of lease of land by Noida elsewhere. The very basis of the enhancement by the ld. CIT(A) that the lands were transferred to the assessee by Noida is fallacious and completely in disregard to the relevant articles mentioned elsewhere. The lands were given on lease and, therefore, there is no question of ownership being transferred to the assessee and, therefore, there is no question of any addition on this account. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to delete the same. 58. In the result, the appeals of the assessee are allowed. 12. In the absence of any change in the factual matrix and legal proposition, the appeal of the assessee on this ground is allowed. ITA No. 4418/Del/2018 ITA No. 4420/Del/2018 Set off of unabsorbed depreciation: 13. On going through the record, we find that this issue has not been adjudicated by the ld. CIT(A). Since, the primary adjudication has not been done by the first appellate authorities, hence we deem it fit to remand the issue to the ld. CIT(A) for adjudication. Capital Subsidy/Set off of Capital Subsidy: 14. At the outset, both the parties fairy submitted that the issue stands covered by the order of the Co-ordinate Bench of ITAT in assessee s own case in ITA No. 4410/Del/2018 to 4417/Del/2018 from A.Y. 2006-07 to A.Y. 2011-12 vide order dated 08.08.2023. The relevant part of adjudication is as under: DISALLOWANCE OF DEPRECIATION CLAIMED ON TOLL BRIDGE Rs. 15.97 CRORES 52. Though the claim of depreciation was allowed to the assessee, as discussed in the aforementioned paras, the ld. CIT(A) treated the part market value of alleged transfer of land as capital receipt, he went on to reduce t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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