TaxTMI 
TaxTMI 
2023 (2) TMI 32
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....ese Tax Case Appeals have been filed by the assessee while some of the other by the Income Tax Department. The details of these Appeals are as under:- Sl. No. T.C.A.No. Appellant A.Y Respondent A 868/2009 L & T Infrastructure Development Projects Ltd # 2001-02 The Asst.Commissioner of Income Tax Department, Chennai 34 B 869/2009 L & T Infrastructure Development Projects Ltd # 2002-03 -do- C 870/2009 L & T Infrastructure Development Projects Ltd # 2003-04 -do- D 756/2010 The Asst. Commissioner of Income Tax Department, Chennai 34 2004-05 LTIDPL INDVIT SERVICES Ltd. E 1201/2010 The Asst. Commissioner of Income Tax Department, Chennai 34 2005-06 LTIDPL INDVIT SERVICES Ltd. F 339/2013 The Asst. Commissioner of Income Tax Department, Chennai 34 2003-04 LTIDPL INDVIT SERVICES Ltd. G 253/2013 LTIDPL INDVIT SERVICES Ltd. 2003-04 The Asst. Commissioner of Income Tax Department, Chennai 34 H 206/2014 LTIDPL INDVIT SERVICES Ltd. 2002-03 The Asst. Commissioner of Income Tax Department, Chennai 34 I 358/2014 The Asst. Commissioner of Income Tax Departme....
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....th the following observations:- .......... From the facts of the case it is clear that the bridge built over the river is integral part of National Highway No.8 and therefore it has no independent use or function if separated from road. It is a matter of fact that the bridge has a more durable life than the plant and machinery and depreciation represents the wear and tear in the asset by its use in the business for earning income and corresponds diminution in the capital applied for the said asset. When the life of a bridge is more than a plant or machinery and rather equal or more than a building then the bridge cannot be treated as a plant for the purpose of depreciation. Accordingly following the order of this Tribunal, we decide this issue against the assessee and in favour of the Revenue. The order of the Commissioner (A) is set aside and that of the Assessing Officer is restored. 7. In the result, the appeals of the Revenue are allowed". 10. Against the impugned common order dated 13.02.2009 passed by the Income Tax Appellate Tribunal, T.C.A.Nos.868, 869 & 870 of 2009 have been filed by the assessee. When these appeals were admitted following substantial ....
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....eturn for the Assessment Year 2004- 2005 on 31.10.2004. The assessment was completed. The assessment order dated 27.11.2006 was passed under Section 143(3) of the Income Tax Act, 1961. 14. The assessment order dated 27.11.2006 passed under Section 143(3) of the Income Tax Act, 1961. The Commissioner of Income Tax vide Order dated 24.03.2009 revised the assessment order dated 27.11.2006 passed under Section 143(3) of the Income Tax Act, 1961. 15. Earlier, the Commissioner of Income Tax invoked Section 263 of the Income Tax Act, 1961 and issued a notice dated 21.01.2009 to revise the Assessment Order under Section 263 of the Income Tax Act, 1961. The assessee replied to the same on 20.02.2009. Thereafter, the Commissioner of Income Tax passed dated order dated 24.03.2009 with the following observations:- "3. The assessee perhaps could amortize this investment and write it off over the period of lease as done in the books following consistent view for both book and income tax purpose. This could be better alternative to the claim of the depreciation on this investment which is not eligible for depreciation under the existing provisions of the Act. Without prejudice to t....
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.... the order of the ld.CIT passed under section 263 is quashed. In the circumstances, the appeal of the assessee is allowed. It is further held that as the order of the ld.CIT passed under section 263 has been quashed, the issue on merits of the decision is not adjudicated. 5. In the result, the appeal of the assessee is allowed." 20. By the impugned order dated 18.06.2010 in ITA.No.456/Mds/2010, the Income Tax Appellate Tribunal has allowed the appeal filed by the assessee. 21. The assessee filed its return for the Assessment Year 2005- 2006 on 30.10.2005. The return was processed under Section 143(1) of the Income Tax Act, 1961.A notice under Section 143(2) of the Income Tax Act, 1961 was issued to the assessee on 12.03.2007. The authorized representative of the assessee appeared from time to time and furnished the various details called for. An assessment order came to be passed on 08.10.2007 under Section 143(3) of the Income Tax Act, 1961. 22. Thereafter, a notice under Section 263 of the Income Tax Act, 1961 was issued for revision of the assessment completed on 08.10.2007. By an order dated 27.01.2010 bearing reference C.No.218(19)/ CIT-I /263 /2009-10, the C....
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.... that there is no infirmity in the order of the Commissioner of Income-tax( Appeals) and this ground is also liable to be rejected . 4. Now, coming to the appeal filed by the Revenue, the ground is that the Commissioner of Income-tax(Appeals) has erred in allowing the depreciation claim of the assessee on project assets at the rate of 10% applicable to buildings. It is the case of the Revenue that the assessee is not entitled for any amount of depreciation, as the assessee is not the owner of the asset built in by it. But, as already pointed out 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. 27. The assessee had filed a return of income for the Assessment Year 2003-2004 on 28.11.2003. An assessment order was passed on 15.02.2006 under Section 143(3)(i) of the Income Tax Act, 1961. Thereafter, Section 148 of the Income Tax Act, 1961 was invoked. Pursuant to the above, a revised assessment order dated 31.12.2010 came to be passed by the Deputy Commissioner of Income Tax under Section 143(3) read with Section 147 of the Income ....
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....mercial right similar thereto" eligible to claim depreciation? 339 of 2013 i. Whether the assessee is entitled to depreciation at the rate of 15% on the project cost viz., bridges and road treating the assets as plant and Whether it was proper for the Tribunal to hold that depreciation was allowable on bridges and road especially when the asset was not acquired by the assessee nor was he the owner of the assets? H & I : - T.C.A.Nos.206 & 358 of 2014:- ( Assessment year 2002- 2003) L TIDPL INDVIT SERVICES Ltd. vs. The Asst. Commissioner of Income Tax Department, Chennai 34 and (The Asst. Commissioner of Income Tax Department, Chennai 34 vs. L TIDPL INDVIT SERVICES Ltd. ) 32. T.C.A.No.206 of 2014 has been filed by the assessee. T.C.A.No.358 of 2014 has been filed by the Income Tax Department. Both appeals have been filed against the impugned common order dated 20.08.2013 in I.T.A.No.1118/Mds/2012 and in I.T.A.No.1325/Mds/2012. Operative portion of the impugned order in ITA.No.1118/Mds/2012reads as under:- 14. On the other hand, the Id.DR has supported the order passed by the Assessing Officer. 15. We have heard both sides, perused th....
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....A.No.358 of 2014 Whether in the facts and the circumstances of the case, the Tribunal was right in law in upholding the reassessment proceedings initiated by the Assessing Officer without appreciating that neither there was any new tangible material / information for the Assessing Officer to form a 'reason to believe' nor there was any direct nexus shown to exist between the new tangible material and reasons for belief that income has escaped assessment? i) Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the assessee was entitled to depreciation at the rate of 15% on the project cost viz., bridges and roads treating the asset as plant and machinery? ii) Is not the finding of the Tribunal wrong by holding that depreciation was allowable on bridges and roads especially when the asset was not acquired by the assessee nor was it owned by the assessee? J : - T.C.A.No.841 of 2014:-( Assessment Year 2004-2005) T he Asst. Commissioner of Income Tax Department, Chennai 34 vs. L TIDPL INDVIT SERVICES Ltd . ) 38. T.C.A.No.841 of 2014 has been filed by the Income Tax Department against the ord....
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....ready been appealed before the High Court? ii. Whether the assessee is entitled to depreciation at the rate of 25% on the project cost, namely, bridge and road, treating the assets as plant and machinery? iii. Whether it was proper for the Tribunal to hold that depreciation was allowable on bridges and road, especially when the asset was not acquired by the assessee nor was he the owner of the assets? 42. The these two assessee companies were conceived and incorporated as Special Purpose Vehicle (SPV) for the purpose of construction, operation and maintenance of the respective toll bridges and roads under Build Operate & Transfer (BOT) Scheme. 43. Concessionaire Agreements were entered into between the respective assessee with the Government of India and Government of Gujarat asdetailed under:- Sl.No. Name of the Assessee Date of the Concession Agreement Period Name of the Bridge 1 i) L&T Infrastructure Development Projects Ltd. (Formally M/s.Narmada Infrastructure Construction Enterprises Limited)#. 21.11.1997 15 Years (including the construction period of 3 years) A toll bridge across the "Narmada" river (in Gujarat) on Nation....
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.... Development Ltd case vide Order dated 24.10.2008 in ITA.No.2082/Mds/2008 'C' Bench by treating the Toll Road as a building. 52. Power under Section 263 of the Income Tax Act, 1961 was invoked against Assessment Order passed for the Assessment Years 2004- 2005 and 2005-2006 [T.C.A.Nos.756 & 1201 of 2010]. 53. It is the contention of the respective assesses that they are entitled to depreciation at 25% where as it is the contention of the Income Tax Department that they are not entitled to claim deprecation at all as roads and bridges are neither plant nor buildings. 54. The case of the respective assessees before the Income Tax Appellate Tribunal was that they were entitled for depreciation under plant and machinery at 25%. 55. The Tribunal has taken similar views in the case of the respective assessees. In the case of L&T Infrastructure Development Projects Ltd.*(Formerly Narmada Infrastructure Construction Enterprises Limited) Appellants in TCA Nos. 868, 869 and 870 of 2009), it has held that the assessee was entitled for 10% depreciation. 56. In the case of LTIDPL INDVIT SERVICES L#(Formerly, L& T Western India Toll Bridge Ltd.) rest of the appeals also as in Tabl....
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....the principles of law and not in accordance with accountancy practice. 63. In this connection, a reference was made to the decision of the Hon'ble Supreme Court in Tuticorin Alkali Chemicals & Fertilizers Ltd. Vs. Commissioner of Income Tax, [1997] 227 ITR 172 (SC). The Hon'ble Supreme Court, after referring the decision in B.S.C. Footwear Ltd. Vs. Ridgway (Inspector of Taxes), [1972] 83 ITR 269 (HL), has held as under:- "29. It is true that this Court has very often referred to accounting practice for ascertainment of profit made by a company or value of the assets of a company. But when the question is whether a receipt of money is taxable or not or whether certain deductions from that receipt are permissible in law or not, the question has to be decided according to the principles of law and not in accordance with accountancy practice. Accounting practice cannot override Section 56 or any other provision of the Act. As was pointed out by Lord Russell in the case of B.S.C. Footwear Ltd. [(1972) 83 ITR 269 : (1971) 2 All ER 534, HL] , the Income Tax law does not march step by step in the footprints of the accountancy profession." 64. It is further submitted ....
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....117 ITR 15 (Andhra Pradesh). xii.Commissioner of Income Tax Vs. Dr.B.Venkata Rao, [2000] 243 ITR 81 (SC). xiii.Scientific Engineering House (Pvt.) Ltd. Vs. Commissioner of Income Tax, Andhra Pradesh, (1986) 1 SCC 11 : [1986] 157 ITR 86 (SC). xiv.Assistant Commissioner of Income Tax, Circle-16(2), Hyderabad Vs. Progressive Constructions Ltd., [2018] 63 ITR 516 (Hyderabad - Trib.) : [2018] 92 taxmann.com 104 (Hyderabad - Trib.) (SB). xv.Commissioner of Income Tax Vs. Shivalik Hatcheries (P.) Ltd., [2010] 329 ITR 432 (Himachal Pradesh) : [2010] 186 Taxman 79 (Himachal Pradesh) xvi.Maharashtra State Road Development Corporation Ltd. Vs. Assistant Commissioner of Income Tax, Circle 5(2), Mumbai, [2010] 126 ITD 279 (Mumbai) : [2010] 128 TTJ 32 (Mumbai). xvii.Commissioner of Income Tax Vs. Podar Cement Pvt. Ltd. and others, (1997) 5 SCC 482. xviii.Cognizant Technology Solutions India Private Limited Vs. The Assistant Commissioner of Income Tax and another, dated 05.10.2021 in W.A.No.2521 of 2021. xix.Ashoka Info (P.) Ltd. Vs. Assistant Commissioner of Income Tax, [2010] 35 SOT 50 (Pune) (URO). xx.TANMAC India....
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.... the property in his own right." ........ 14. In our opinion, the term owned as occurring in Section 32(1) of the Income Tax Act, 1961 must be assigned a wider meaning. Anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act etc. "Building owned by the assessee" - the expression as occurring in Section 32(1) of the Income Tax Act means the person who having acquired possession over the building in his own right uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirements of laws such as the Transfer of Property Act and the Registration Act etc. but nevertheless is entitled to hold the property to the exclusion of all others. 69 .As far as the invocation of Section 263 of the Income Tax Act, 1961, it was submitted that the r....
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.... of the conflicting views and in the light of the fact that the Commissioner of Income Tax (Appeals) - IX had taken up a favourable view in the case of the assessee (the appellant in T.C.A.Nos.868 to 870 of 2009) in ITA.Nos.422, 423 & 424/05-06. It is submitted that it is well settled principles of law wherever there were conflicting views, favourable to the assessee is to be considered. 78. It is submitted by the Income Tax Department that the roads and bridges, construction of which were awarded under the BOT Scheme to the respective assessees, were not the assets of the respective assesseee's to claim depreciation and therefore question of claiming depreciation at 25% either as plant or as 10% does not arise. 79.On behalf of the Income Tax Department, it is submitted that the cost of construction was borne by the Government and remuneration for the work was in the form of collection of toll for the period of 106 months under the agreement. 80. It is the case of the Income Tax Department that the roads and bridges are not been fixed assets of the respective assessees and therefore they are neither the "buildings" nor the "plant" or "machinery" and therefore question of c....
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....e "tangible asset", whether the "Toll Roads" and "Toll Bridges" laid and built by the respective assessees are to be treated as plant' or "building" for the purpose granting depreciation under Section 32 of the Income Tax Act, 196? iii.Whether in the facts and circumstances of the cases in TCA No. 756 of 2010 and TCANo.1201 of 2010, the order of the Tribunal interfering with the order of the Commissioner of Income Tax passed under Section 263 of Income Tax Act, 1961 are sustainable or not? 84. We have considered the arguments advanced by the learned counsel for the assessee and the learned counsel for the Income Tax Department. 85. As per Explanation 3 to Section 32 d the expression "assets means- i) tangible assets, being buildings, machinery, plant or furniture; ii)intangible assets, being know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature. 86. Section 32 of the Income Tax Act, 1961 as it stood during the relevant period read as under:- Depreciation. 32. (1) In respect of depreciation of- (i) buildings, machinery, plant or furniture, being ....
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....assenger motor vehicle", "light motor vehicle", "medium goods vehicle" and "medium passenger motor vehicle" but does not include "maxi-cab", "motorcab", "tractor" and "road-roller"; b. the expressions "heavy goods vehicle", "heavy passenger motor vehicle", "light motor vehicle", "medium goods vehicle", "medium passenger motor vehicle", "maxi-cab", "motor-cab", "tractor" and "road roller" shall have the meanings respectively as assigned to them in section 2 of the Motor Vehicles Act, 1988 (59 of 1988): 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 the Taxation Laws (Amendment) Act, 1991: Provided also that the aggregate deduction, in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets or know-how, patents, copyrights, trademarks, licences, franchises or a....
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....l 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; (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 thingor in the business of generation or generation and distribution of power, 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 appliances or road transport vehicles; or D. any machinery or plant, the whole of the actual cost of which is allowed as a deductio....
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....e banking company to the banking institution. (iv) *** (v) *** (vi) *** (1A) *** (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 year, 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. 87. In the context of Build-Operate-Transfer ('BOT') arrangements in Paragraph No.3 of Circular No.9/2014 [F.No.225/182/2013/ITA.II] dated 23.04.2014, it has been clarified as follows:- "3. In BOT arrangements for development of roads/highways, as a matter of general practice, ....
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...."furniture" have been prescribed under the provisions of the Income Tax Rules, 1962. 92. Section 43(3) of the Income Tax Act, 1961, defines the expression "plant". The expression "plant" has been defined in Section 43(3) as follows:- "plant"includes ships, vehicles books, scientific apparatus and surgical equipment used for the purposes of the business or profession[but does not include tea bushes of livestock or buildings or furniture or fittings". 93. The expression "know how" has also been defined in Explanation 4 to section 32. It reads as under:- Explanation 4.-For the purposes of this sub-section, the expression "know-how"means any industrial information or technique likely to assist in the 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). 94. The above definition of "Plant" in section 43(3) of the Income Tax Act, 1961, makes it clear that neither the "Toll Bridge" constructed nor the "Toll Road" laid by the respective assessee are a "plant" for the purpose of Section 32 of the Income Tax Act, 1961....
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....1) of section 32 [See Note 6 below this Table] (iv)New commercial vehicle which is acquired on or after the 1st day of October, 1998, but before the 1st day of April, 1999 in replacement of condemned vehicle of over 15 years of age and is put to use for any period before the 1st day of April, 1999 for the purposes of business or profession in accordance with the third proviso to clause (ii) of sub- section (1) of section 32 [See Note 6 below this Table] (v) New commercial vehicle which is acquired on or after the 1st day of April, 1999 but before the 1st day of April, 2000 in replacement of condemned vehicle of over 15 years of age and is put to use before the 1st day of April, 2000 for the purposes of business or profession in accordance with the second proviso to clause (ii) of sub- section (1) of section 32 [See Note 6 below this Table] (vi)New commercial vehicle which is acquired on or after the 1st day of April, 2001 but before the 1st day of April, 2002 and is put to use before the 1st day of April, 2002 for the purposes of business or profession [See Note 6 below this Table] (via) New commercial vehicle which is acquired on or after the 1st day of January, 2009 b....
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....ilastic long standing intravenous catheters for chemotherapy (n)Fibre optic endoscopes including, Paediatric resectoscope/audit resectoscope, Peritoneoscopes, Arthoscope, Microlaryngoscope, Fibreoptic Flexible Nasal Pharyngo Bronchoscope, Fibreoptic Flexible Laryngo Bronchoscope, Video Laryngo Bronchoscope and Video Oesophago Gastroscope, Stroboscope, Fibreoptic Flexible Oesophago Gastroscope (o) Laparoscope (single incision) (4) Containers made of glass or plastic used as re-fills (5) Computers including computer software (See Note 7 below this Table) (6) Machinery and plant, used in weaving, processing and garment sector of textile industry, which is purchased under TUFS on or after the 1st day of April, 2001 but before the 1st day of April, 2004 and is put to use before the 1st day of April, 2004 [See Note 8 below this Table] (7) Machinery and plant, acquired and installed on or after the 1st day of September, 2002 in a water supply project or a water treatment system and which is put to use for the purpose of business of providing infrastructure facility under clause (i) of subsection (4) of section 80- IA [See Notes 4 and 9 below this Table] (8) (i) Wooden....
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.... controlled series compensation equipment (i) Time of Day (ToD) energy meters (j) Equipment to establish transmission highways for National Power Grid to facilitate transfer of surplus power of one region to the deficient region (k) Remote terminal units/intelligent electronic devices, computer hardware/software, router/bridges, other required equipment and associated communication systems for supervisory control and data acquisition systems, energy management systems and distribution management systems for power transmission systems (l) Special energy meters for Availability Based Tariff (ABT) F. Burners: (a) 0 to 10 per cent excess air burners (b) Emulsion burners (c) Burners using air with high pre-heat temperature (above 300°C) G. Other equipment : (a) Wet air oxidation equipment for recovery of chemicals and heat (b) Mechanical vapour re-compressors (c) Thin film evaporators (d) Automatic microprocessor based load demand controllers (e) Coal based producer gas plants (f) Fluid drives and fluid couplings (g) Turbo charges/supercharges (h) Sealed radiation sources for radiation processing plants (x) Gas cylinders including valv....
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.... [40] [40] [40] [40] [40] [40] [30] 40 [40] [40] [40] [40] [40] [40] [40] [40] [40] [40] [40] [40] [40] [40] 15 [40] [40] [40] [4....
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.... means a person having acquired possession over the building in his own right and uses the same for the purpose of the business or profession though a legal title has not been conveyed to him consistently with the requirements of laws such as the Transfer of Property Act and the Registration Act etc. However, it should be borne in mind that the said decision was rendered in the context of allotment of houses by the Housing Boards. There the intention was to convey the property at a later point of time, once all the payment dues are paid to the Housing Board. 100. There the possession was transferred in presenti while the transfer of ownership was deferred to a future date after full payment of the installment was made. The reasoning and the ratio adopted by the Hon'ble Supreme Court in the context of housing sites and houses in CIT v.Podar Cement Private Limited [1997] 226 ITR 625 therefore cannot be imported to the facts of the present case. 101. Under the BOT arrangement/scheme, it can never be impugned and conceived that the respective assessee were the owners of the respective "Toll Roads" and "Toll Bridges" In fact, these infrastructures on the National Highway or State Hig....
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.... by the respective assessees for constructing the "Toll Bridge" and "Toll Road" were to be amortised and written-off in the books of account over a period of time in proportion with the period during which the concessionaire agreements were to be in force as per the relevant Accounting Standards. 111. The Delhi High Court in Moradabad Toll Road Co. Ltd.v. Assistant Commissiner of Income Tax ,2014 SCC OnLine Del 2286has concluded that Toll roads executed under Build, Operate and Transfer Basis (BOT) was a "capital asset" which when used by any person, who makes payment for the said use, generates and results in accrual of income and will be a part of the business of the assessee and not a implement or a tool used by an assessee for his business. However, it is hardly a criteria for granting depreciation. 112. Though the Delhi High Court noted several decisions of various Courts including that of the Allahabad High Court in CIT v. Noida Toll Bridge Company [2013] 213 Taxman 333 and that of the decision of the Hon'ble Supreme Court in CIT v. Anand Theatres [2000] 244 ITR192, it has come to an erroneous conclusion by conferring the benefit of depreciation on "Toll Road" as "B....
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....an ever be owned by a private entrepreneur like the respective assessees in the present case. 119. We are, therefore, inclined to hold that neither the "Toll Bridge" nor "Toll Roads" are "Tangible Assets" of the respective assessees in terms of Explanation 3(a) to Section 32 of the Income Tax Act, 1961. Accordingly, we answer the first part of the substantial question formulated by us in para 82 against the respective assessees. 120. We are of the view that the second part of the 1st substantial question of law as to whether the respective assessees have any "Intangible Assets" under the respective Concessionaire Agreements as per the definition in Explanation 3(b) to Section 32 of the Income Tax Act, 1961 also requires to be answered against the assessee. The definition of the above expression has already been extracted above. 121. The expression used in the last part of the definition of "Intangible Asset" is licenses, franchises or any other business or commercial rights of similar nature". 122. The meaning of the above expression "licenses" and the phrase" any other business or commercial rights of similar nature" has to be inferred from the meaning of the words alo....
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.... the purpose of the aforesaid provision. 128. In the light of the above discussion we are constrained to answer the second part of the first substantial question of law also against the assessee and in favour of the revenue. 129. In view of the above answer, the 2nd substantial question of law is also to be answered against the assessees and in favor of the revenue. 130. In our view, impugned orders of the Income Tax Appellate Tribunal upholding claim of the assessee for depreciation at 10% on the "Toll Bridges" and "Toll Roads" to the respective assessees were erroneous. Such findings were unwarranted under the scheme of the Income Tax Act, 1961. 131. In our view, the case of L&T Transportation Infrastructure Ltd. in ITA.No.1692 vide order dated 30.11.2010 and M/s.T.N.Road, Development Company in ITA.No.2082/Mds/2008 dated 24.10.2008 cannot be accepted by this Court. In the light of the above discussion, by answering to the substantial questions of law Nos.1 and 2 above. 132. This leaves us with the 3rd substantial question of law framed by us. The Assessing Officer while passing the assessment orders dated 30.11.2005 in I.T.A.Nos.617/Mds/2008, 618/Mds/2008 & 619/Md....
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....2014 2002-2003 2 206/2014 2002-2003 3 253/2013 2003-2004 4 339/2013 2003-2004 5 756/2010 2004-2005 6 841/2014 2004-2005 7 1201/2010 2005-2006 137. T.C.A.Nos.756 of 2010 for the Assessment Year, 2004-05 and T.C.A.No.1201 of 2010 for the Assessment year 2005-06, pertain to the order passed by the Tribunal setting aside the order passed by the Commissioner in the exercise of power conferred under Section 263 of the Income Tax Act, 1961. In the light of the decision of the Commissioner of Income Tax Department in Tamil Nadu Road Development Co., Ltd., vs. ACIT 120 ITD and in the case of L& T Transportation and Infrastructure Co., Ltd., and another decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Anand Theatres, 244 ITR 192. 138. The Assessing Officer had accepted the contention of the assessee that the assessee was entitled to depreciation at 25% by treating the "Toll Road" as a "Plant" even though, neither the "Toll Road" belongs to assessee nor it is a "Plant". 139. The Tribunal allowed the assessees' appeals for the Assessment Years 2004-2005 in ITA.No.857/Mds/2009 vide order dated 1....