TaxTMI 
TaxTMI 
TaxTMI 
2010 (12) TMI 1181
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.... that the impugned issue is covered by the decision of the Tribunal of Pune Bench in the case of Asoka Info (P) Ltd. vs. ACIT (2009) 22 DTR 60; (2009) 123 TTJ (Pune) 77. This factual matrix was not controverted by the revenue. The revenue has also not produced any decision contrary to the assertion of the assessee. 3. We have considered the rival submissions of ld. representatives of both sides and perused the material available on record. Brief facts are that assessee company incurred cost for construction of toll road (BOT project) at Basmat at Rs. 5,86,48,771/- in earlier years. The project became operational w.e.f. 26.2.2003 (FY 2002-03). The assessee company got the right to collect the toll to recover the cost of the BOT project within the stipulated period of 5109 days. The assessee company initially ammortised the cost of the BOT project by claiming it as deferred revenue expenditure. However, subsequently, the entire cost was capitalized and claimed depreciation u/s 32 of the Act at Rs. 1,47,46,823/- i.e. @25% of the capitalized cost of the project by filing a revised return. This claim of the assessee was rejected. The stand of the Assessing Officer was affirmed by the l....
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....deduction in respect of such asset shall be allowed on such percentage on the written down value thereof as may be prescribed. Explanation.-For the purposes of this proviso,- (a) the expression "commercial vehicle" means "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle" and "medium passenger motor vehicle" but does not include "maxi-cab", "motor-cab", "tractor" and "road-roller"; (b) the expressions "heavy goods vehicle"75, "heavy passenger motor vehicle"75, "light motor vehicle"75, "medium goods vehicle"75, "medium passenger motor vehicle"75, "maxi-cab"75, "motorcab" 75, "tractor"75 and "road roller" shall have the meanings respectively as assigned to them in section 2 of the Motor Vehicles Act, 1988 (59 of 1988):] 76[Provided also that, in respect of the previous year relevant to the assessment year commencing on the 1st day of April, 1991, the deduction in relation to any block of assets under this clause shall, in the case of a company, be restricted to seventy-five per cent of the amount calculated at the percentage, on the written down value of such assets, prescribed under this Act immediately before the commencement of....
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....manufacture or processing of goods or in the working of a mine, oil-well or other sources of mineral deposits (including searching for discovery or testing of deposits for the winning of access thereto). 81[Explanation 5.-For the removal of doubts, it is hereby declared that the provisions of this sub-section shall apply whether or not the assessee has claimed the deduction in respect of depreciation in computing his total income;] 82[(iia) in the case of any new machinery or plant (other than ships and aircraft), which has been acquired and installed after the 31st day of March, 2005, by an assessee engaged in the business of manufacture or production of any article or thing, a further sum equal to twenty per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii) : Provided that no deduction shall be allowed in respect of- (A) any machinery or plant which, before its installation by the assessee, was used either within or outside India by any other person; or (B) any machinery or plant installed in any office premises or any residential accommodation, including accommodation in the nature of a guest-house; or (C) any office applian....
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....ntral Government under sub-section (7) of section 45 of that Act85, of any asset by the banking company to the banking institution.]] (iv) 86[***] (v) 87[***] (vi) 88[***] (1A) 89[***] 90[(2) Where, in the assessment of the assessee, full effect cannot be given to any allowance under sub-section (1) in any previous year, owing to there being no profits or gains chargeable for that previous year91, or owing to the profits or gains chargeable being less than the allowance, then, subject to the provisions of sub-section (2) of section 72 and sub-section (3) of section 73, the allowance or the part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following previous year and deemed to be part of that allowance, or if there is no such allowance for that previous year, be deemed to be the allowance for that previous year, and so on for the succeeding previous years.]" In view of the aforesaid provision, as per explanation 3 to sec. 32(1), the expression 'asset' and 'block of asset' shall mean tangible asset, being building, machinery, plant or furniture. As per explanation 5, the provision....
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....icence. In terms of BOT scheme and entrepreneur is required to build an infrastructure facility by arranging its own finances. Thereupon the operation and maintenance is also the responsibility of the entrepreneur. In consideration thereupon such entrepreneur is entitled to collect on from the motor vehicle passing through such road/bridges etc. In view of these facts, we are of the considered opinion that the assessee is entitled to depreciation. Our view is further supported by the decision of the Pune Bench in the case of Ashoka Info (P) Ltd. vs. ACIT (supra). Therefore, this ground of the assessee in both the appeals is allowed. 5. The next ground pertains to disallowance of vehicle running and maintenance expenses. Keeping in view the totality of the facts and circumstances, nature of business, the vehicles are very much required by the assessee. Therefore, in view of the decision of the Indore Bench in the case of M/s. Keti Construction vs. ACIT (ITA Nos.173 & 174/Ind/2003) order dated 26.9.2008, such an adhoc disallowance cannot be said to be justified. The decision from Hon'ble Gujarat High Court in Sayaji Iron & Engg. Co. vs. CIT, 253 ITR 749 further supports our view. Ho....