TaxTMI 
TaxTMI 
2026 (5) TMI 222
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....e contract of 4 laning of Jorabat-Shillong (Barapani) Section of National Highway - 40 in the States of Assam and Meghalay on Design, Build, Finance, Operate and Transfer ('DBFOT') basis. He submitted, if this issue gets decided in favour of the assessee, the other issues would more or less become academic. Hence, may be kept open. 3. Learned Departmental Representative ('ld. DR' for short) agreed with the aforesaid submissions of ld. Counsel for the assessee. Keeping in view the aforesaid submissions of the parties, we propose to deal with the issue of claim of depreciation at the very outset and, thereafter, if warranted, will take up the other issues arising in the appeals. 4. In this context, we propose to take up ITA No. 1204/Mum/2026, pertaining to A.Y. 2017-18 as the lead appeal. ITA No. 1204/Mum/2026 (A.Y. 2017-18) 5. Ground no. 1 is a general ground, hence, no separate adjudication is required. 6. The issue relating to claim of depreciation is contained in ground no. 2 of the appeal. Before we proceed with the issue, it is necessary to briefly recapitulate the relevant facts. The assessee is a resident corporate entity stated to be engaged in the business of....
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....elying upon Circular No. 9/2014 issued by Central Board of Direct Taxes (CBDT) on 23.04.2014, the A.O. held that the assessee is eligible to amortize the expenditure incurred towards construction of the toll road over the period of concession agreement, i.e., 20 years. Accordingly, while disallowing assessee's claim of depreciation, he allowed amortization of cost incurred by the assessee in the construction of the project for an amount of Rs. 58,05,03,505/-. 8. The assessee contested the disallowance made by the A.O. by filing an appeal before ld. First appellate authority. However, at the first appellate stage, the decision of the A.O. was upheld. 9. Before us, ld. Sr. Counsel appearing for the assessee took us through the concession agreement dated 16.07.2010 with NHAI and submitted that the assessee was given the contract of Four-Laning of particular stretch of Jorabat Shillong (Barapani) Section of National Highway on DBFOT basis. He submitted, as per the terms of the agreement, the assessee was to construct the highway all by itself. He submitted, the scope of work included investigation, design, developing, engineering, procurement, delivery, transportation, installati....
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....nt, he submitted, as per the terms of the agreement, the Concessionaire is obliged to operate and maintain the highway project during the concession period. Drawing our attention to Article 27 of the Agreement, he submitted, upon successful completion of the project and commencement of operation, the Authority would pay the Concessionaire annuity at a particular amount as set out in the agreement. Drawing our attention to Article 40 of the Agreement, ld. Counsel submitted, the Concessionaire cannot assign its rights to any other person, save and except with the prior approval of the authority. 11. Thus, he submitted, in terms with the concession agreement, the assessee not only constructed the highway project infusing its own funds, but is also required to operate and maintain for a period of 20 years. In return, the assessee was only to receive annuity at a specific rate. Thus, he submitted, by investing the funds, the assessee acquired the license to maintain and operate the toll road and also the right to receive annuity over the concession period. He submitted, the right acquired by the assessee to receive annuity over the concession period is definitely an 'intangible....
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....No. 868 of 2009 and others vide judgment dated 29.12.2022). Taking us through the aforesaid judgement, ld. Counsel submitted that on a reading of judgement it appears that the issue has been decided against the assessee. However, the decision is clearly distinguishable. He submitted, the question posed to the Hon'ble High Court was 'whether the assessee was entitled to treat the toll road and toll bridge as intangible asset and can claim depreciation thereon?'. He submitted, while specifically answering this question, Hon'ble High Court followed the decision of Hon'ble Bombay High Court in case of North Karnataka Expressway Ltd. vs. CIT [2015] 372 ITR 145 and held that neither toll bridge nor the toll road are tangible assets of the assessee in terms with section 32 of the Act. Hence, depreciation would not be available to the assessee. 14. He submitted, the present assessee's claim of depreciation is not founded on the toll road as its asset. Rather, he submitted, the assessee is claiming depreciation on the concessionaire rights acquired by it under the Concession Agreement which is an intangible asset acquired by the assessee against the investment made in executing the highw....
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....ted for scrutiny. He submitted, in A.Y. 2020-21, the A.O. himself allowed claim of depreciation on a part of the capitalized expenditure and no amortization was allowed. In A.Y. 2021-22, assessee's claim of depreciation was not disturbed in absence of any scrutiny assessment. Whereas, in A.Y. 2022-23, claim of depreciation was disallowed, but amortization was allowed at the first appellate stage. He submitted in A.Y. 2023-24, assessee's claim of deprecation remained undisturbed in absence of scrutiny assessment. Thus, he submitted, the inconsistent approach of the departmental authorities has put the assessee in lot of difficulties in absence of clarity on the issue. Thus, he submitted, the issue needs to be settled once for all at this stage. 16. Ld. DR submitted, the assessee was given the contract of executing the highway project. He submitted, the highway project undisputedly belongs to NHAI. Therefore, the assessee cannot claim depreciation on the highway (toll road) as it is neither the owner of the asset nor used it for its business. He submitted, assessee's claim of depreciation by treating the right to receive annuity as an intangible asset is unacceptable as there is n....
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....3.1 means as under: ARTICLE 3 GRANT OF CONCESSION 3.1 The Concession 3.1.1 Subject to and in accordance with the provisions of this Agreement, the Applicable Laws and the Applicable Permits, the Authority hereby grants to the Concessionaire the concession set forth herein including the exclusive right, licence and authority during the subsistence of this Agreement to constrict,. operate and maintain the Project (the "Concession") for a period of 20 (twenty) years commencing from the Appointed Date, and the Concessionaire hereby accepts the Concession and agrees to implement the Project subject to and in accordance with the terms and conditions set forth herein: 3.1.2 Subject to and in accordance with the provisions of this Agreement, the Concession hereby granted shall oblige or entitle (as the case may be) the Concessionaire to: (a) Right of Way, access and licence to the Site for the purpose of and to the extent conferred by the provisions of this Agreement; (b) construct the Project Highway; (c) Subject to Clause 3.1.2(d), manage, operate and maintain the Project Highway and regulate the use thereof by third parties; ....
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....opment Period. it being expressly agreed and out any surveys, investigations and spil tests that the Concessionaire may deem understood that the Authority shall have no liability whatsoever in respect of survey, investigations and tests carried out or work undertaken by the Concessionaire on or about the Site pursuant hereto in the event of Termination or otherwise. 10.2.2 In consideration of the Concession Fee, this Agreement and the covenants and warranties on the part of the Concessionaire herein contained, the Authority, in accordance with the terms and conditions set forth herein, hereby grants to the Concessionaire, commencing from the Appointed Date, leave and licence rights in respect of all the land (along with any buildings, constructions or immovable assets, if any, thereon) comprising the Site which is described, delineated and shown in Schedule-A hereto (the "Licensed Premises"), on an "as is where is" basis, free of any Encumbrances, to operate and maintain the said Licensed Premises, together with all and singular rights, liberties, privileges, easements and appurtenances whatsoever to the said Licensed Premises, hereditaments or premises or any part thereof....
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....ences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1st day of April, 1998, [not being goodwill of a business or profession] 23. Thus, as could be seen from the above extracted provision, license is one of the intangible assets. Undoubtedly, the assessee was given a license to execute the project and right to receive annuity. Therefore, the license given is an intangible asset coming within the ambit of section 32(1)(ii) of the Act. In case of ACIT vs. Progressive Construction Ltd. (supra), while dealing with more or less identical issue the Special Bench of ITAT has held as under: 8. We have patiently and carefully considered the rival submissions, perused the materials on record as well as the decision cited at the Bar. 9. The core issue arising for consideration in this appeal is in relation to assessee's claim of depreciation on the asset created by investing an amount of Rs. 214 crore in construction of Pune Hyderabad section of National Highway no.9, on build, operate and transfer (BOT) basis with a right to collect toll charges from the user of road by vehicles over the concessi....
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.... can be regarded as a commercial or business right akin to a license; v) If such C.A. is akin to a license, what intangible asset has been created for the assessee and what is the expenditure incurred by the assessee for acquiring such intangible asset. 10. Before dealing with the issue, it is necessary to reiterate that the Government of India being desirous of implementing a project involving, construction, operation and maintenance of four lane Pune Hyderabad section of N.H. no.9, with private sector participation of BOT invited tender from interested parties. The assessee being successful in the tender, the Government of India entered into a Concession Agreement (C.A) with the assessee on 22nd December 2005. At this stage, it is necessary to look into some of the relevant clauses of C.A., which in our opinion, will have a crucial bearing in deciding the issue. As per clause 2.1 of the C.A., the Government of India grants and authorises the concessionaire i.e., the assessee to investigate, study, design, engineer, procure, finance, construct, operate and maintain the project and to exercise and/or enjoy the rights, powers, privileges, authorizations and entitle....
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.... the entry and use of the same by the third parties, however, it shall not part with or create any encumbrance on the whole or any part of the project site save and except, as set forth and permitted under the agreement. Clause 4.1 of the C.A. entitles the concessionaire to levy, demand and collect fee for user of the roads by vehicles and persons in accordance with the fee notification to be issued by the Government of India. However, concessionaire cannot levy and collect any fee until it has received completion certificate. Clause 5.1 and 5.2 of the C.A. lays down the obligation of the concessionaire for execution and implementation of the project / project facility during the concession period. From the reading of the aforesaid clauses of the contract, following facts emerge:- i) The right, title and ownership of the project site vests absolutely with the Government of India and it has full powers to hold, dispose off and deal with the same; ii) The Government of India has handed over physical possession of the project site to the concessionaire for executing / implementing the project and operating the same during the concession period; iii) Concessi....
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.... repetition we must observe, as per the terms of agreement the expenses incurred by the assessee towards construction of the roads, bridges, etc., were not going to be reimbursed by the Government of India. This fact was known to both the parties before the execution of the agreement as the tender itself has made it clear that the project is to be executed with private sector participation on BOT basis. Thus, from the very inception of the project, assessee was aware of the fact, it has to recoup the cost incurred in implementing the project along with the profit from operating the road and collecting toll charges during the concession period. Therefore, assessee has capitalized the cost incurred on the BOT project on which it has claimed depreciation. Thus, in our view, the expenditure incurred by the assessee of Rs. 214 crore for creating the project or project facilities has created an intangible asset in the form of right to operate the project facility and collect toll charges. Further, it is the contention of the learned Senior Standing Counsel that if at all any right is created under the C.A. for collecting toll, such right accrued to the assessee on the date of execution o....
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....nation 3 to section 32(1) defines intangible asset as under:- Explanation 3.-For the purposes of this sub-section, the expression "assets" shall mean- (a) tangible assets, being buildings, machinery, plant or furniture; (b) intangible assets, being know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature 13. A plain reading of the aforesaid provisions would indicate that certain kind of assets being knowhow, patents, copyrights, trademarks, license, franchise, or any other businesses or commercial rights of similar nature are to be treated as intangible asset and would be eligible for depreciation at the specified rate. It is the claim of the assessee that the right acquired under C.A. to operate the project facility and collect toll charges is in the nature of license. However, the learned Senior Standing Counsel has strongly countered the aforesaid claim of the assessee by referring to the definition of license as provided under the Indian Easements Act, 1882. For better appreciation, we intend to reproduce herein below the definition of "license" as provided under section 52 ....
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.... operate the project / project facility and collect toll charges is a license or akin to license, hence, being an intangible asset is eligible for depreciation under section 32(1)(ii) of the Act. 15. Even assuming that the right granted under the C.A. is not a license or akin to license, it requires examination whether it can still be considered as an intangible asset as described under section 32(1)(ii) of the Act. In this context, it has been the contention of the learned Senior Standing Counsel that the intangible asset mentioned under section 32(1)(ii) of the Act are specifically identified assets, except, the assets termed as "any other business or commercial rights of similar nature". He had submitted, applying the principle of ejusdem generis the rights referred to in the expression "any other business or commercial rights of similar nature", should be similar to one or more of the specifically identified assets preceding such expression. The aforesaid contention of the learned Departmental Representative is unacceptable for the reasons enumerated hereinafter. 16. We have already held earlier in the order that by incurring the expenditure of `Rs.214 crore a....
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....he statutory provisions. Had it been the case, then 'goodwill' would not have been treated as an intangible asset. The Hon'ble Delhi High Court in case of Areva T and D India Ltd. (supra), while interpreting the aforesaid expression by applying the principles of ejusdem generis observed, the right as finds place in the expression "business or commercial rights of similar nature" need not answer the description of knowhow, patents, trademarks, license or franchises, but must be of similar nature as the specified asset. The Court observed, looking at the meaning of categories of specified intangible assets referred to in section 32(1)(ii) of the Act preceding the term "business or commercial right of similar nature", it could be seen that the said intangible assets are not of the same line and are clearly distinct from one another. The Court observed, the use of words "business or commercial rights of similar nature", after the specified intangible assets clearly demonstrates that the legislature did not intend to provide for depreciation only in respect of specified intangible assets but also to other categories of intangible assets which were neither visible nor possible to exhaust....
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....d after perusal of the records, we note that assessee had constructed the road/Project Highway [as stated at Page 12 of Concession Agreement (CA) for Design, Construction, Development, Finance, Operation & Maintenance of KM 135, 469 (End of proposed Kolkata Bypass) to KM 211 (Kurnool) on NH-7 in the State of Andhra Pradesh under North-South Corridor (NHDP Phase II) on BOT (Annuity) basis] as per the terms of CA dated 20.03.2006 signed between NHAI and assessee-company. The assessee had filed its return of income on 26.09.2011 declaring loss of Rs. 88,91,21,522/- and the assessee initially claimed depreciation @ 15% on opening WDV on toll roads and thereafter revised the claim of depreciation @ 25% on the right to collect "annuity" on the toll road constructed as an intangible asset u/s. 32(1)(ii) of the Act. But the AO rejected the claim of depreciation but allowed amortization of the expenditure incurred on the construction of the road amounting to Rs. 43,66,99,212/- which action of AO is as per the CBDT Circular No. 09/2014. On appeal, the Ld. CIT(A) took note of the decision of the Hon'ble Rajasthan High Court in the case of Pr.CIT v. GVK Jaipur Expressway Ltd. (supra) wherein t....
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....pening WDV. 19. We do not countenance the action of Ld CIT(A) of not appreciating/understanding the Tribunal order in assessee's own case for AY 2010-11 wherein the Tribunal has clearly distinguished the ratio of the Hon'ble Jurisdictional High Court in the case of North Karnataka Expressway Ltd. (supra) & West Gujarat Expressway Ltd. (supra) and in these two cases, the Hon'ble High Court did not dealt with assessee's claim of depreciation on right to annuity [Intangible Asset u/s 32(1)(ii) of the Act]. It is further noted that Hon'ble High Court while deciding the case of North Karnataka Expressway Ltd. (supra) has observed that as the assessee had invested in the project of construction, development and maintenance of the National Highway, therefore, claim for depreciation on the assets in the form of building and plant & machinery etc. can be validly raised and granted. Also, their Lordship had referred to the observation recorded by the CIT in his order passed under Sec.263 of the Act, wherein he had while declining the assesses claim for depreciation on 'toll road' had categorically stated that it was not the case of the assessee that the claim of depreciation was bei....
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....djudication to the issue that as to whether or not an Infrastructure Development Company that had constructed a road on BOT basis on land owned by the Central Government would be eligible to claim depreciation on such 'toll road' so constructed and operated by it. Accordingly, we are of the considered view, that the issue as to whether an Infrastructure Development company that had constructed a road on build, operate and transfer (BOT) basis on the land owned by the Central Government would be entitled to claim depreciation under Sec. 32(1)(ii) in respect of its intangible rights i.e. "right to collect annuity / toll" had not been adjudicated by the Hon'ble High Court in its aforesaid order in the case of North Karnataka Expressway Ltd. (supra). We further find that the Hon'ble Jurisdictional High Court had thereafter once again reiterated its aforesaid view while disposing off the appeal of the revenue in the case of M/s West Gujarat Expressway Ltd. (supra). As is discernible from the order, the only two issues which were raised by the revenue in its aforesaid appeal before the High Court were, viz. (i). Whether on the facts and in the circumstances of the case and in law, the Tr....
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....was observed by the Special Bench, that where the assessee had never claimed expenditure incurred for construction of the road on build, operate and transfer (BOT) basis, as a deferred revenue expenditure, the same could not have been amortized in terms of CBDT Circular No. 9 of 2014, dated, 23.04.2014. The observations of the Ld. "Special bench" of the Tribunal which on the issue under consideration before us are as under: "11. Undisputedly, for executing the project, assessee has incurred expenses of Rs. 214 crore. It is also not disputed that as per the terms of the C.A., the Government of India is not obliged / required to reimburse the cost incurred by the assessee to execute / implement the project facilities. The only right / benefit allowed to the assessee by the Government of India is to operate the project / project facilities during the concession period of 11 years 7 months and to collect toll charges from vehicles / persons using the project / project facilities. Thus, as could be seen, the only manner in which the assessee can recoup the cost incurred by it in implementing the project / project facility is to operate the road during the concession period and ....
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.... the expenditure incurred by such date should be the value of intangible asset which can alone be considered for depreciation under section 32(1)(ii) of the Act. We are afraid, we cannot accept the above argument of the learned Senior Standing Counsel. When the C.A. confers a right on the assessee to operate the project facility and collect toll charges over the concession period of 11 years and 7 months, the assessee can start operating and collecting toll charges only when the project facility is ready for use. Therefore, until the project is completed and ready for use by vehicles or persons assessee cannot collect toll charges for user of the project facilities. Thus, the right to operate the project facility and collect toll charges is integrally connected to the completion of the project facility which cannot be done unless the assessee invests its fund for completing the project. Therefore, keeping in view the aforesaid fact, it cannot be said that the right to collect toll has accrued to the assessee on the date of execution of the agreement. If we accept the aforesaid argument of the learned Senior Standing Counsel, in other words, it would mean that without even executing....
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....ed:- Where on person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license." 14. It has been the contention of the learned Senior Standing Counsel that as the term "license" has not been defined under the Income Tax Act, 1961, the definition of "license" under the Indian Easements Act, 1882, has to be looked into. Accepting the aforesaid contention of the learned Senior Standing Counsel, let us examine the definition of "license" extracted herein above. A plain reading of section 52 of the Act makes it clear, a right granted to a person to do or continue to do something in the immovable property of the grantor, which, in the absence of such right would be unlawful and such right does not amount to an easement or interest in the property, then such right is called a license. If we examine the facts of the present case, vis-a-vis, the definition of license under the Indian Easements Act, 1882, it would be clear that....
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....llect toll charges. Therefore, such right acquired by the assessee is a valuable business or commercial right because through such means, the assessee is going to recoup not only the cost incurred in executing the project but also with some amount of profit. Therefore, there cannot be any dispute that the right to operate the project facility and collect toll charges therefrom in lieu of the expenditure incurred in executing the project is an intangible asset created for the enduring benefit of the assessee. Now, it has to be seen whether such intangible asset comes within the expression "any other business or commercial rights of similar nature". As could be seen from the definition of intangible asset, specifically identified items like knowhow, patents, copyrights, trademarks, licenses, franchises are not of the same category, but, distinct from each other. However, one thing common amongst these assets is, they all are part of the tool of the trade and facilitate smooth carrying on of business. Therefore, any other intangible asset which may not be identifiable with the specified items, but, is of similar nature would come within the expression "any other business or commercial....
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....e circumstances the nature of business or commercial right cannot be restricted only to knowhow, patents, trademarks, copyrights, licence or franchise. The Court observed, any intangible assets which are invaluable and result in smoothly carrying on the business as part of the tool of the trade of the assessee would come within the expression "any other business or commercial right of similar nature". 17. In the case of Techno Shares and Stocks Ltd. v/s CIT, [2010] 327 ITR 323 (SC), the Hon'ble Supreme Court while examining the assessee's claim of depreciation on BSE Membership Card, after interpreting the provisions of section 32(1)(ii), held that as the membership card allows a member to participate in a trading session on the floor of the exchange, such membership is a business or commercial right, hence, similar to license or franchise, therefore, an intangible asset. In the present case, undisputedly by virtue of C.A. the assessee has acquired the right to operate the toll road / bridge and collect toll charges in lieu of investment made by it in implementing the project. Therefore, the right to operate the toll road / bridge and collect toll charges is a business or ....
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....ance, the project was of BOT nature whereas in the present case before us, the contract is of DBFOT nature having much wider scope than BOT. As noted in foregoing paragraph (E) of this order, the scope of DBFOT contract, in as much as it also includes Design and Finance, is much wider than BOT contract. Moreover, as noted in foregoing paragraph (B) of this order, the project is deemed to be acquired and owned by the assessee. Further, as noted in paragraph (E.1) of this order, possession of the project by the assessee is also established. In view of these distinguishable facts and circumstances, we are of the opinion that the precedents relied upon by the learned D.R. in his written submissions have no application or relevance for the case before us. What the Assessing Officer has failed to appreciate, is that the asset on which the assessee has claimed depreciation, is "Right to Collect Toll", which is an intangible asset. By necessary implication, it is impossible for intangible asset to be "physically owned" in the sense in which the Assessing Officer expects. When the assessee has deemed ownership of physical assets corresponding to the 'intangible asset' as is the case here; i....
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....or 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? 27. While answering these questions, the Hon'ble High Court held as under: 96. A reading of the above definition makes it clear that neither a "Toll Road" nor a "Toll Bridge" is neither a "Plant" or "Building". 97. As such the claim for depreciation either as a "Plant" or "Building" ought not to have been claimed by the respective assessee's as "Toll Road" and "Toll Bridge" do not come within the definition of "Tangible Assets" in Explanation 3 to Section 32 of the Income Tax Act, 1961. Ownership is a sine quo non for availing depreciation under Section 31 of the Income Tax Act, 1961. In our view, to claim depreciation, the respective assessee's ought to have been the owners of the respective toll roads/ toll bridges. 98. The Honourable Supreme Court in CIT v.Podar Cement Private Limited [1997] 226 ITR 6....
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..... The respective assessee's as agreement holders were merely given a privilege/a right to collect tolls from vehicles passing through them as a consideration for having developed them. The right to collect toll from vehicles was merely a deferred consideration for putting up the Road and for maintaining them during the term under the respective concessionaire agreements. No separate consideration was paid to the respective assessee's by the respective Governments. 106. The rights that were conferred under the respective concessionaire agreements signed between the respective government with the respective assessee's was in lieu of the consideration for completing the aforesaid road infrastructure which would have otherwise not been made available to them. 107. It is a mechanism adopted to recuperate the expenses incurred by the respective assessee's as contractee's under the respective concessionaire agreement with a scope for making reasonable profit over a period of such agreement for having put up the aforesaid road infrastructure and for maintaining them during such period. 108. Therefore, even otherwise respective assessee's are not eligible to claim....
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.... Income Tax v. West Gujarat Expressway Ltd[2017] 82 taxmann.com 224 following its earlier views in North Karnataka Expressway Ltd v. CIT [2015] 372 ITR 145. It appeals to our reasoning. 115. The Bombay High Court in North Karnataka Expressway Ltd v.CIT[2015] 372 ITR 145 has upheld the view of the Tribunal holding that the assessing officer there had allowed depreciation in a very mechanical manner to the assessee therein without examination of the issue. 116. The Bombay High Court also distinguished the views taken by the Allahabad High Court in CIT v. Noida Toll Bridge Company Limited [2013] 213 Taxman 333 by holding that the Allahabad High Court failed to take note of Section 5 of the National Highways Act, 1956, which reads as under:- 5. Responsibility for development and maintenance of national highways.- It shall be the responsibility of the Central Government to develop and maintain in proper repair all national highways; but the Central Government may, by notification in official Gazette, direct that any function in relation to the development or maintenance of any National Highway shall, subject to such conditions, if any, as may be speci....
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.... were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general." 124. As per the above principle the words must take colour from words with which they are associated. 125. In Skinner & Co.v.Shew and Co. (1893) 1 Ch 413 (D), it was observed: "The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense, that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give these words their plain and ordinary meaning. In our opinion, in the context of the object and the-mischief of the enactment there is no room for the application of the rule of ....
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....Hon'ble Madras High Court discussed above is factually distinguishable, hence, not applicable to assessee's case. Thus, on a conspectus of the judicial precedents cited before us, the sequitur is, the right granted to an assessee to collect toll/annuity during the concession period in respect of a toll road constructed on DBOFT or BOT basis is an intangible asset u/s.32(1)(ii) of the Act. Hence, depreciation is allowable on such asset at the specified rate. Even otherwise also, the CBDT through Circular No. 9/2014 has allowed amortization of the expenditure over the concession period. Therefore, in any case of the matter, the assessee will get the deduction either by way of deprecation or through amortization. Thus, there can only be a timing difference. Therefore, in our considered view, the issue is otherwise revenue neutral. 29. Moreover, on perusal of the facts on record, we are of the view that the department has taken inconsistent view on the issue in various assessment years as discussed elsewhere in the order. In some assessment years, claim of depreciation has been allowed either due to lack of scrutiny assessment or by the A.O. himself. Thus, to settle the controversy ....