TaxTMI 
TaxTMI 
2017 (6) TMI 1167
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....(A) erred in confirming the assessment made u/s 153A r.w.s. 143(3) without realising the fact that, there was no incriminating material found relating to A.Y. 2006-07. Therefore, it is prayed to hold that, the assessment u/s 153A & its confirmation in appeal, both are illegal and contrary to the provisions of law. 2. i. The learned CIT (A) erred in not allowing depreciation on 'Licence/Right to Collect Toll', as an intangible asset. ii. The learned CIT (Appeals) erred in confirming the amortization of road construction expenses, spread over the period of toll collection, on the basis of CBDT Circular No. 9/2014 dt. 23.04.2014, instead of allowing depreciation on toll collection rights/licence to collect toll, as an intangible asset, as allowed in the original assessment u/s 143(3). iii. The learned CIT (Appeals) erred in confirming the amortization of road construction expenses, spread over the period of toll collection, on the basis of CBDT Circular No. 9/2014 dt. 23.04.2014, instead of allowing depreciation on toll collection rights/licence to collect toll, as an intangible asset, as allowed by the ITAT, Pune Bench B in appellant's own case ....
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....papers, to estimate the alleged suppressed toll receipts. vi. Without prejudice to above, the learned CIT(A) also erred in not allowing the expenses incurred, as evidenced by the seized diary @ 3.39, on the presumption that the payments noted against various authorities were for illegal purposes, without properly appreciating the explanation offered in this respect. 4. Briefly, in the facts of the case, search and seizure operations under section 132 of the Act was conducted on the Ashoka Group of cases on 20.04.2010. The residential premises of the Directors and the office premises of assessee company were covered under search action. The assessee had originally filed the return of income declaring total loss of Rs. 28,89,09,269/-. The assessment under section 143(3) of the Act was completed on 19.12.2008. In pursuance to the notice issued under section 153A of the Act, the assessee filed the return of income declaring total loss of Rs. 28,88,64,777/-. The assessee was 100% subsidiary of M/s. Ashoka Buildcon Ltd. The assessee was incorporated with the object of executing an infrastructure project of Flour Laning and Strengthening of Pune-Ahmednagar Road, SH 60 KM 10/60....
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....il B. Raisoni. The message Nos.43 & 44 received on the mobile of Shri Sunil B. Raisoni, Director of the assessee company contained the details of toll collection of various toll nakas. The statement on oath of Shri Jayesh Dongarwal was recorded on 20.04.2010 at the office premises of assessee company and he was asked to explain the message sent. In reply to question No.12, he explained that this was the toll collection from various places reported to the Director by him. He further explained that as per instructions received from the Director, only that much amount was accounted for in the books of account as much told by Shri Sunil B. Raisoni, the balance cash lies with the cashier. On verification of the above message, it was seen that the receipt from Shirur Toll Naka showed cash receipt of Rs. 8.64 lakhs, whereas on physical verification of cash receipt on the date of search taken from the cashier Ms. Dipti Lokam was Rs. 10.35 lakhs. In reply to question No.3, Shri Jayesh Dungarwal had accepted that as per instructions from Shri Sunil B. Raisoni, toll collection was recorded. Thus, it was established that the assessee was suppressing its receipt of toll collection in its books ....
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....e assessee could well record the entire toll collections. The Assessing Officer also observed that the assessee was not entitled to the deduction allowable under section 80IA(4) of the Act, since it was undisclosed income unearthed during the course of search. Further, an affidavit filed by Ms. Dipti Lokam was held to be an afterthought in order to negate the findings recorded in the search. The Assessing Officer concluded by holding that for working of estimated suppression, percentage of toll collection offered by the assessee should be the basis. Another reference was made to the diary marked as Annexure A, Bundle No.3 African Safari Note Book), which Ms. Dipti Lokam had admitted to be her hand written record of daily cash received and paid. The Assessing Officer adopted 5% of toll receipts offered by the assessee as suppressed toll collections for the year under consideration, which was assessed in the hands of assessee as income from other sources at Rs. 85,83,978/-. 6. The second issue which was considered by the Assessing Officer was the depreciation claimed on Licence to collect toll. The assessee in the return of income had claimed depreciation to the tune of Rs. 36,31,....
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....r. 8. The CIT(A) first decided the issue of claim of depreciation on "License to Collect Tolls", where the Assessing Officer had allowed amortization of expenses incurred for the construction of infrastructure facility i.e. road, proportionately over the period of life of assets. The claim of assessee before the CIT(A) was that the Tribunal in assessment year 2007-08 vide order dated 18.07.2013 had already allowed depreciation on the Right/License to Collect Toll under section 32(1)(ii) of the Act treating the same as an intangible assets. Vis-à-vis the CBDT circular No.9/2014, dated 23.04.2014 treating the said expenditure as deferred revenue expenditure and advising the Assessing Officer to allow the amortization thereof in proportionate manner over and above the toll collection, was held to be not applicable to the assessee, since the said circular was sub judice and under consideration of the Hon'ble High Court. The CIT(A) observed that while deciding the appeals in the case of assessee's group, he had followed the order of Tribunal in assessee's own case for assessment year 2007-08. However, at that particular time, there was no scheme from CBDT giving clarification ....
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.... issued the notification on 05.07.2005 in favour of the assessee for collection of toll from 06.07.2005 to 06.07.2013. Initially, the assessee had two booths at Ranjangaon Toll Naka and Koregaon Toll Naka, However, w.e.f. 17.03.2011, the assessee was operating at only one toll booth at Perne Phata. The CIT(A) noted that on the basis of certain incriminating documents found from the assessee's office at Pune, the Assessing Officer had made addition on account of suppression of toll @ 5% of the toll collection shown by the assessee in its books of account for different assessment years starting from 2006-07 to 2011-12. The CIT(A) noted that from the statement of Ms. Dipti Lokam and Annexure A, Bundle 3 (African Safari Note Book), wherein such undeclared toll receipts were found recorded, which were written by Ms. Dipti Lokam, contained cash receipts from various Toll Nakas. The CIT(A) has scanned and placed the copies of some of pages of the said diary at pages 20 and 22 of the appellate order. The CIT(A) noted from the perusal of the said pages that total receipts in case of Ranjangaon and Koregaon Toll Nakas shown by the assessee in its regular books of account were different from ....
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....e also confirmed that the Director had instructed him to report less cash vis-à-vis actual cash received from Toll Nakas. He further confirmed that was the practice of under-reporting of cash which was followed by the company. All these contentions of assessee were rejected by the CIT(A), in view of various evidences found and also the confirmation of Ms. Dipti Lokam and Shri Jayesh Dungarwal, which in turn, corroborated findings of the Assessing Officer. Hence, the contention of assessee to allow the expenditure i.e. 3.39% of total unrecorded toll collection was not accepted and was dismissed. 10. Another contention of the assessee that the Annexure gave details of unrecorded toll for a limited period pertaining to assessment years 2010-11 and 2011-12 and therefore, no addition was required to be made for earlier years, was held to be not tenable by the CIT(A). It was noted by him that the assessee was collecting toll pursuant to notification dated 05.07.2005 from 06.07.2005 onwards. He further observed that after taking into consideration the seized material, it was reasonable to conclude that the assessee was adopting the practice of under-reporting of toll collection ....
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....ssessed under the head 'business income', as per the CIT(A), the Assessing Officer should consider the assessee's request for set off of unabsorbed depreciation and unabsorbed business losses accordingly. Further, dealing with adhoc declaration of Rs. 75 lakhs and Rs. 10 lakhs to cover all types of additions and disallowances for assessment years 2010-11 and 2011-12 respectively, the CIT(A) noted that the Assessing Officer had not given any set off of above referred declaration of additional income. The Assessing Officer had made the addition on account of suppressed toll collection. However, no other benefit of set off of additional income declared by the assessee was allowed by the Assessing Officer. The Assessing Officer was thus, directed to allow the set off of adhoc additional income of Rs. 75 lakhs and Rs. 10 lakhs against additional income from suppression of toll collection for assessment years 2010-11 and 2011-12 respectively. 12. The assessee is in appeal against the order of CIT(A). 13. The first issue raised in assessment year 2006-07 is that in the absence of any incriminating material found relating to assessment year 2006-07, no addition could be made under se....
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....essee's claim was that since the evidence found was for a limited period, the same could not be applied for the period of six years covered under section 153A of the Act. The learned Authorized Representative for the assessee referred to the order of Assessing Officer and pointed out that upto 20.04.2010, there is only an estimation by the Assessing Officer which has been confirmed by the CIT(A). The learned Authorized Representative for the assessee referred to the decision of Hon'ble Bombay High Court in North Karnataka Expressway Ltd. Vs. CIT (2015) 372 ITR 145 (Bom) and pointed out that in the facts of the said case, the assessee had claimed depreciation at toll road and not as intangible asset. The Hon'ble High Court has not decided the issue whether the assessee therein was entitled to claim the deprecation on intangible asset and the said issue has been left open. He further referred to the Mumbai Bench of Tribunal in ACIT Vs. West Gujarat Expressway Ltd. (2015) 57 taxmann.com 384 (Mumbai -Trib.), which in turn, had applied the ratio laid down by the Pune Bench of Tribunal in ACIT Vs. Ashoka Infraways (P.) Ltd. (2013) 58 SOT 147 (Pune -Trib.). He further referred to the circ....
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....ne Bench of Tribunal in DCIT Vs. Venkateshwara Hatcheries P. Ltd. in ITA Nos.742 to 745/PN/2012, relating to assessment years 2003-04 to 2006-07 and in Venkateshwara Hatcheries P. Ltd. Vs. DCIT in ITA Nos.753 to 755/PN/2012, relating to assessment year 2003-04 to 2005-06, order dated 24.07.2013 and Mumbai Bench of Tribunal in bunch of appeals with lead order in ACIT Vs. M/s. Thakkar Popatlal Velji Sales Ltd. in ITA No.5743/Mum/2010, relating to assessment year 2006-07, consolidated order dated 08.05.2013, which in turn, has been confirmed by the Hon'ble Bombay High Court . He stressed that he was not admitting that extrapolation could be made for the assessment year 2010-11 as before the CIT(A), the assessee had admitted the practice from May, 2009. He stressed that no extrapolation could be calculated for earlier year and the year of search except for upto 19.04.2010 and financial year 2009-10. 16. The learned Departmental Representative for the Revenue referring to the order of CIT(A) pointed out that depreciation was disallowed in view of CBDT circular No.9/2014 issued on 23.04.2014 and instead, amortization of the cost was allowed over the period of operations. He referred t....
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....he original return of income by the assessee. The assessment in the case of assessee for assessment year 2006-07 was completed under section 143(3) of the Act and the said claim was allowed. Further, in assessment year 2007-08, similar claim of depreciation on intangible asset was denied to the assessee. However, the Tribunal in ITA No.989/PN/2010, relating to assessment year 2007-08 vide order dated 18.07.2013 had allowed the claim of depreciation on license to collect toll @ 25% being intangible asset within the scope of section 32(1)(ii) of the Act. 18. The assessee made a similar claim in the return of income filed under section 143(3) r.ws 153A of the Act. However, the Assessing Officer denied the said claim of assessee in all the years under consideration holding that the assessee was not the owner of road attached to the said right and the asset road was not used in the business of assessee. The Assessing Officer also held that the right to collect toll was not a license. The CIT(A) on the other hand, relied on the circular issued by the CBDT giving clarification on treatment of expenditure incurred for development of roads/highways in Built-OperateTransfer agreement. The....
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....for construction thereof was capitalized by the Appellant in its books in the assessment year 2005-06 during which the construction of the toll road was completed. As the assessment year under consideration was the first year when the road became operational, the Appellant claimed Depreciation of Rs. 59.92 crores at the rate of 10% on the capitalized cost of the toll road. The Appellant also filed necessary details of the claim of depreciation and a note was appended to the depreciation schedule stating that though the Appellant was entitled to higher claim of depreciation on toll road, the claim is made at the rate of 10%. The right to claim higher depreciation is reserved. The Appellant relied upon the standard concession document of the National Highway Authority of India and the clause therein that 'for the purpose of claiming tax depreciation, the property representing the capital investment made by the concessionaire shall be deemed to be acquired and owned by the concessionaire'." (emphasis supplied by us) 18. The Hon'ble Bombay High Court, however, after discussing the provisions of National Highway Act, 1956 and National Highway Authorities of India Act, ....
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....e term owner as appearing in the Income Tax Act, 1961 has been defined widely and broadly for the purpose of the provisions of the Income Tax Act so as not to allow anybody to escape the provisions thereof by urging that he has a limited right or which is not akin to ownership, therefore his income should not be brought to tax; Similarly, if he can claim any deductions from his income which is comprising of profit and gain from his business, then, that deduction can be availed by him. It is for that limited purpose that the term 'onwer' is defined in this manner in Income Tax Act, 1961. The above observations of the Hon'ble Bombay High Court reveal that for the purpose of claiming deduction under Income Tax Act, the term 'owner' as defined under the Income Tax Act can be looked into. However, that cannot control, leave alone or overreach the National Highway Act, 1956 or the National Highway Authorities of India Act, 1988. The Hon'ble Bombay High Court further, in para 47 of the said order, has observed that the assessee can definitely claim depreciation on the investments. He has definitely invested in the projects of construction development and maintenance of the Nation....
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....e various decisions of the Hon'ble Supreme Court and other Hon'ble High Courts, has held that even if a claim is not made before the AO it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim is not barred. The Hon'ble Bombay High Court while relying upon the decision of the Hon'ble Supreme Court in the case of 'Jute Corporation of India Limited vs. CIT' 1991 Supp (2) SCC 744 = (1991) 187 ITR 688 has observed that the power of the Appellate Commissioner is coterminous with that of the Income Tax Officer and an appellate authority while hearing appeal against the order of the subordinate authority, has all the powers which the original authority may have in deciding the questions before it, subject to the restrictions or limitations, if any, prescribed by statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. An assessee is entitled to raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. The appellate author....
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....r bonafide belief and in view of the settled legal position as was there at the time of putting the claim. Even the AO has also observed in the assessment order that it is a fact that the assessee company has incurred huge expenditure on the said project which cannot be treated as revenue expenditure allowable in one year as the same has resulted into providing enduring benefit to the assessee company, hence, the said amount would be eligible for amortization for the period of the concession agreement as it was allowed in the A.Y. 2007-08 and 2008-09. It is also a fact that the said amortization of the expenses has not been accepted by the Tribunal and the assessee in the earlier assessment years has been granted deduction as depreciation treating the road as a capital asset. 23. In view of the above facts, it is not disputed or contested by the Revenue that the assessee is not entitled to any deduction. The only issue in dispute is as to under what head/provision the deduction is to be allowed to the assessee. The Hon'ble Jurisdiction High Court of Bombay in the case of "Balmukund Acharya vs. DCIT" reported in (2009) 221 CTR 440 (Bom.) has held that the Hon'ble Apex Court....
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....ure incurred by the assessee on such BOT projects brings to it an enduring benefit in the form of right to collect the toll during the period of the agreement. Hon'ble Supreme Court in the case of Madras Industrial Investment Corporation Ltd. vs. CIT in 225 ITR 802 allowed spreading over of liability over a number of years on the ground that there was continuing benefit to the company over a period. Therefore, analogously, expenditure incurred on an infrastructure project for development of roads/highways under BOT agreement may be treated as having been made/incurred for the purposes of business or profession of the assessee and the same may be allowed to be spread during the tenure of concessionaire agreement." 25. Having discussed the above stated factual position, the CBDT has directed to treat the above expenditure as revenue expenditure and to amortize the same over the period of the agreement as allowable business expenditure. The assessee, however, has claimed that the same is a capital expenditure and it is entitled to deductions over the investments made as depreciation. A perusal of the above reproduced para 4 of the circular reveals that it is not disputed even....
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....evant rules. Our above view is further supported by the decision of the co-ordinate Pune bench of the Tribunal in the case of M/s. Ashoka Infrastructure Ltd. Vs. ITO in ITA No.989/PN/2010 & ITA No.1105/PN/2010,wherein, the Tribunal while further relying upon another decision of the Co-ordinate Bench of the Tribunal in the case of 'Ashoka Infraways Pvt. Ltd. Vs. ACIT' in ITA No.185 & 186/PN/2012 dated 29.04.2013, has held in clear terms that the claim of the assessee for depreciation on "licence to collect toll" being an 'intangible asset' falling within the scope of section 32(1)(ii) of the Act is liable to be upheld. The relevant part of findings of the Tribunal for the sake of convenience is reproduced as under: "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 intang....
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.... the assessee was to build, operate and transfer the said infrastructure facility in terms of an agreement with the Government of Madhya Pradesh. The expenditure on development, construction and maintenance of the infrastructure facility for a specified period was to be incurred by the assessee out of its own funds. Moreover, after the end of the specified period, assessee was to transfer the said infrastructure facility to the Government of Madhya Pradesh free of charge. In consideration of developing, constructing, maintaining the facility for a specified period and 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)(i/) of the Act and has been found eligible for claim of de....
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....id discussion, we hereby allow the Ground of Appeal No. 1.1 raised by the assessee." 29. In view of our observations made in the preceding paras and also agreeing with the above reproduced findings of the Tribunal, we hold that the assessee is entitled to the claim of depreciation on the road to collect toll being an intangible asset falling within the purview of section 32(1) (ii) of the Act." 22. The Tribunal in ACIT Vs. West Gujarat Expressway Ltd. (supra) further referring to the ratio laid down by the Hon'ble Bombay High Court held that since the assessee is not the owner of toll road, but has been given the right to develop, maintain and operate the toll road and to further collect the toll for the specified period, then this right is an intangible asset falling under section 32(1)(ii) of the Act and the alternate contention of assessee that the project be treated as plant & machinery and depreciation be allowed, was rejected vide para 30 of the order. Further, vide para 31, the Tribunal considered the contention of Revenue that investment made by the assessee be treated as revenue expenditure and be amortized for the period of agreement, was rejected holding that....
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....gible asset, in view of section 32(1)(ii) of the Act. The reason for which the said depreciation which was earlier allowed by the Tribunal in the case of assessee itself for assessment year 2007-08 and was allowed by the Assessing Officer in the order passed under section 143(3) of the Act relating to assessment year 2006-07, was denied by the Assessing Officer as the appeals were pending against the order of Tribunal is not correct approach. Further, the CIT(A) has relied on the CBDT circular dated 23.04.2014, wherein the CBDT has laid down that instead of depreciation on the cost incurred by the assessee, the said cost should be amortized over a specified period and allowed in the hands of assessee. However, the expenditure incurred by the assessee is not revenue in nature and the same cannot be amortized over the period for which the assessee can collect the toll; the right to collect toll is capital expenditure incurred by the assessee and consequently, the assessee is entitled to claim depreciation on such intangible assets as provided under section 32(1)(ii) of the Act. Accordingly, we hold s. The assessee is thus, entitled to its claim. Thus, the second part of the order of ....
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....il B. Raisoni used to give instructions as to how much amount was to be accounted for in the books of account, the balance amount of cash remained with the cashier. He re-confirmed about the instructions of the Director to report less cash vis-à-vis actual cash received from Toll Nakas. The assessee during the course of assessment proceedings furnished the statement showing the difference in toll collection as per seized note and books and as per regular books of account for the period 25.12.2009 to 19.04.2010. As per the assessee's own statement, total amount reflected in the seized Annexure was Rs. 10.98 crores as against Rs. 10.48 crores recorded in the regular books of account. The Assessing Officer noted that the ratio of unrecorded to recorded toll collection was about 4.79%. The assessee before the authorities below claimed that out of unrecorded toll collection, certain amount was utilized for unrecorded expenses and according to the assessee, about 3.39% of the total unrecorded collection of 4.79% was spent on the toll collection activities, thereby, excess unrecorded toll collection was 1.40%. The claim of assessee was rejected in the absence of any documentary evi....
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....rgo Global Logistics Ltd. (supra) had negatived the revenue's submission before it that the assessment under section 153A of the Act is not to be restricted only to the incriminating material found during the course of search but would extend to other material also. Therefore in the facts of present case this issue is covered by the decision of this Court in All Cargo Global Logistics Ltd. (supra) in favour of the respondent-assessee inasmuch as it restricts the assessment to be made only to the incriminating material found during the course of search. The reliance upon the decision of the Supreme Court in H.M. Esufali H.M. Abdulali (supra) is inappropriate. This is so as it was passed under the sales tax law and it proceeded the basis of best judgment assessment i.e. disregarding the assessee's books of account. It is not so in this case." 27. On the other hand, the learned Departmental Representative for the Revenue has placed reliance on the ratio laid down by the Hon'ble High Court of Delhi in CIT Vs. Chetan Das Lachman Das (supra), wherein it has been held that seized material was found to show that the assessee had been indulging in off records transactions. In the facts o....
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.... was deleted by the Tribunal on the ground that no evidence was found in the course of search. Hon'ble Delhi High Court held that the decision of Tribunal that no seized material was found was not correct since evidences were clearly found indicating suppression of income. Accordingly, Hon'ble Delhi High Court held that the CIT(A) had noted in his order that one of the partners of the assessee firm had admitted the practice of suppressing income. Further, in the said case, the issue that evidence of one year cannot be utilised for another year was not raised. Accordingly, considering the above facts, the estimation of income made by the Assessing Officer was accepted. Considering the above facts, the said decision is not applicable to the facts of the present case. In the said case also, the assessee had accepted carrying out such practice and accordingly, Hon'ble High Court confirmed the action of the Assessing Officer. It is important to be noted that ITAT had deleted the addition on the ground that no seized material was found which was totally contrary to the evidence on record. Accordingly, the above ratio is not applicable to the facts of the present case. Regardi....
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....he facts of the present case. We further find in the case of Khopade Kisanrao Manikrao v. Asst. CIT [74 ITD 25 (Pune)(TM)], wherein the learned Departmental Representative has relied upon the said decision of ITAT, Third Member of Pune Bench. In the said case, the evidence was found that the assessee had taken on-money on sale of plots. The evidence was found for all the years falling within the block period. Thus the issue arose that on the basis of evidence found for sale of certain plots, can the Assessing Officer estimate the income in respect of other plots for which no evidence was found. The Third Member held that the evidence was found that the assessee was taking the on-money for sale of plots for the various years of the block period and hence, the Assessing Officer could estimate the on money in respect of sale of other plots even though the evidence was not found. Hence against the distinguishing factor, the evidence was found for all the years and not some of the years and therefore, the Assessing Officer was not justified in estimating the unaccounted income for the other years in this case. In the case of Khopade Kisanrao Manikrao (supra), the issue that whether evid....
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.... 747/PN/2012 & another. Accordingly, the facts of the said case are not identical and not applicable to the facts of the present case. 29. The Tribunal thus, held that the evidence of one year could not be used for other years as held by the Pune Bench of Tribunal in DCIT Vs. Venkateshwara Hatcheries P. Ltd. (supra). 30. The issue arising in the present appeal before us is identical to the issue before the Pune Bench of Tribunal in ITO Vs. Vikrant Happy Homes Pvt. (supra), which had considered the ratio laid down by the Hon'ble High Court of Delhi in CIT Vs. Chetan Das Lachman Das (supra), wherein no issue was raised off extrapolation of income on the basis of evidence of one year to be utilized for other years of search and in the absence of raising of such issue by the assessee therein before the Hon'ble High Court, there is no merit in the plea of learned Departmental Representative for the Revenue before us and consequently, reliance placed upon by the learned Departmental Representative for the Revenue is dismissed. Following the ratio laid down by the Pune Bench of Tribunal in ITO Vs. Vikrant Happy Homes Pvt. (supra) and other decisions, we hold that the evidence found ....