2013 (4) TMI 795

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....with regard to assessee's claim for depreciation in respect of intangible asset namely 'License to collect Toll'. 3. In brief the facts are that the respondent assessee is a consortium of two companies in the form of a partnership, with the object of developing the infrastructure project of construction of Takli-Kasegaon-Anawali Road on Build, Operate and Transfer (BOT) basis for the Government of Maharasthra. The assessee capitalised the cost incurred on the development and construction of the said infrastructure project under the head 'License to collect Toll', amounting to Rs. 7,31,23,467/-. In the return of income, assessee claimed depreciation on the aforesaid @ 25% following section 32(1)(ii) of the Act on the ground that the 'Licens....

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....), had considered an identical issue holding that the impugned 'Right/License to collect Toll' was an intangible asset eligible for depreciation u/s.32(1)(ii) of the Act. Regarding the judgment of the Hon'ble Bombay High Court in the case of Techno Shares & Stocks Ltd. (supra) relied upon by the Assessing Officer, the CIT(A) noted that the said judgment stood overruled by the Hon'ble Supreme Court in a decision reported at 193 Taxman 248 (SC). Against the aforesaid decision, Revenue is in further appeal before us. 5. At the time of hearing, it was a common point between the parties that identical issue has been considered in the case of Ashoka Infraways Pvt. Ltd. vide ITA.No.185 & 186/PN/12 of even date. The rival contentions remain th....

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....on 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 con....