2013 (8) TMI 1170

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....case are that the assessee is a company engaged in the business of construction and constructed of a two lane bridge across river Watrak near Kheda village in Gujarat under the concept of BuildOperate-Transfer Scheme in terms of concession agreement dated 01.03.1999 entered into with the Government of India and Government of Gujarat. It filed return of income for the assessment year under consideration on 30.10.2002 admitting loss of ₹ .3,95,85,660/- and book profit of ₹ .1,30,01,118/- under section 115JB. The return was processed under section143(1) of the Act and the case was reopened by issuing notice under section 148 and after considering the objections, the assessment was completed under section 143(3) r.w.s.147 of the Act....

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....he Hon'ble Supreme Court in the case of ACIT v. Rajesh Jhaveri Stock Brokers (291 ITR 500), the ld. CIT(Appeals) has rejected the ground raised by the assessee. We find no infirmity in the order passed by the ld. CIT(Appeals) and this ground of appeal raised by the assessee is dismissed. 9. So far as merits of the case is concerned with regard to depreciation on bridges, the ld. CIT(Appeals), by following assessee's own case for the assessment year 2003-04 has observed as under: "5. As regards the issue on merits regarding giant of depreciation on bridges, I find that the issue stands covered by the decision of the Id. CIT (A) in the assessee's own case for the assessment year 2003-04 in ITA No. 401/11-12/A-IV dated 16.09.2011 wh....

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....ls), the assessee as well as Revenue are in appeal before the Tribunal. 11. At the time of hearing, the ld. Counsel for the assessee has submitted that the issue involved in this appeal has already been considered by the Tribunal in assessee's own case for the assessment year 2003-04 in I.T.A. No. 1971 & 2105(Mds)/2011 vide order dated 22.11.2012 and held as under: "3. The second issue raised by the assessee is that the Commissioner of Income-tax(Appeals) has erred in treating the project asset developed by the assessee as 'building', instead of 'plant', as claimed by the assessee for the purpose of depreciation under section 32 of the Incometax Act, 1961. It is to be seen that the Commissioner of Incometax(Appeals) has just followed the....

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....by the Commissioner of Income-tax(Appeals), the Tribunal has held in similar cases that the assessee is entitled for depreciation at the rate of 10%. This ground of the Revenue, therefore, fails." 13. The ld. Counsel for the assessee has further submitted that the issue is covered by the decision of the Tribunal in assessee's own case. He also relied on following case law: Civil construction which acts as plant or specific construction for support of plant is also Plant. Operation Theatre CIT v Dr. B. Venkat Rao 243 ITR 81 SC Power generation Station Building CIT v Karnataka Power Corporation 247 ITR 268 SC Buildings with atmospheric control for producing saccharin. R.C. Chemical Industries v CIT 134 ITR 330 Del. Support structur....