TaxTMI 
TaxTMI 
2013 (8) TMI 588
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....t in the form of 'license/right to collect toll' is not eligible to depreciation under the Income Tax Act as an intangible asset @ 25%. He erred in not considering the submissions made before him in their proper perspective. Therefore, it is prayed to hold that the 'license/right to collect toll' is an intangible asset under income tax, eligible for depreciation at 25%." 3. In brief, the facts relevant to the aforesaid Ground as follows. The assessee is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of construction, operation and maintenance of infrastructure facility on BOT (Build, Operate and Transfer) basis. In terms of the same, assessee was engaged in development, operation and maintenance of infrastructure project entitled "Four-laning and Strengthening of Pune-Ahmednagar Road" on BOT basis. For the assessment year under consideration, assessee filed a return of income declaring a loss of Rs.5,49,45,686/- which inter-alia included a claim of depreciation of Rs.30,04,85,739/- on "License to collect Toll" @ 25%. The said claim of the assessee is the subject matter of dispute before us. 4. The assessee was awarded the infr....
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....the CIT(A) also referred to the judgement of the Hon'ble Jurisdictional High Court in CIT vs. Techno Shares and Stocks Ltd. (2009) 225 CTR 337 (Bom.). Against the aforesaid decision of the CIT(A), assessee is in further appeal before us by way of the aforesaid Ground. 6. At the time of hearing, it was a common point between the parties that an identical issue has been considered by the Pune Bench of the Tribunal in the case of Ashoka Infraways Pvt. Ltd. vs. ACIT vide ITA Nos. 185 & 186/PN/2012 dated 29.04.2013. As per the Tribunal following the precedents by way of various decisions of different Benches of the Tribunal mentioned therein, the claim of the assessee for treating the 'License to collect Toll' as an intangible asset eligible for the claim of depreciation @ 25% as per Section 32(1)(ii) of the Act was justified. The following discussion in the order of the Tribunal dated 29.04.2013 (supra) is relevant :- "7. Before us, it was a common point between the parties that the impugned issue has been adjudicated in favour of the assessee in the following decisions of the Tribunal:- i) Ashoka Buildcon Ltd. in ITA.No.1302/PN/09 dated 20.03.2012. ii) M/s.Kalyan Toll Infrastruct....
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....d thereafter transferring it to the Government of Madhya Pradesh free of charge, assessee was granted a 'Right to collect Toll' from the motorists using the said infrastructure facility during the specified period. The said 'Right to collect the Toll' is emerging as a result of the costs incurred by the assessee on development, construction and maintenance of the infrastructure facility. Such a right has been adjudicated by the Tribunal in the aforesaid precedents to be in the nature of 'intangible asset' falling within the purview of section 32(1)(ii) of the Act and has been found eligible for claim of depreciation. No decision to the contrary has been cited by the Ld. DR before us and, therefore, we find no reasons to depart from the accepted position based on the aforesaid decisions. 11. So however, the plea of the Ld. DR before us is to the effect that the impugned right is not of the nature referred to in section 32(1)(ii) of the Act for the reason that the agreement with the Government of Madhya Pradesh only allowed the assessee to recover the costs incurred for constructing the road facility whereas section 32(1)(ii) of the Act required that the assets mentioned therein sho....
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....it is prayed that, the net toll collection, remaining after expenses on collection, be allowed to be deducted first from the cost of construction of the infrastructure facility till its entire recoupment. 1.3 The learned CIT(A) erred in not considering the asset created on incurring of expenditure on construction of the infrastructure facility as 'Plant', eligible for depreciation @ 15%. He failed to appreciate the submissions made in this connection and the fact that the infrastructure facility constructed by the appellant constituted an apparatus used for the purposes of business. Therefore, it is prayed that the asset created on incurring expenditure of construction on infrastructure facility be held as 'Plant'." 10. At the time of hearing, the learned counsel fairly submitted that once the assessee succeeds on its substantive Ground of Appeal No. 1.1, the aforesaid alternative Ground becomes infructuous. Accordingly, the same is dismissed as infructuous. 11. By way of Ground of Appeal No. 2, assessee has claimed deduction under Section 80-IA(4) of the Act with respect to the profits from the infrastructure facility. The said claim was not made in the return of income as the ....