ACIT, Circle-16(2), Hyd, Hyderabad V. Progressive Constructions Limited., Hyd, Hyderabad

CO 36/HYD/2015

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2805 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 30-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Depreciation; Search and seizure; Earning of tax free income; Revised return; Revenue expenditure; Capital expenditure
• Section: 14A; 115JB; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SPECIAL BENCH, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT, SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1845/HYD./2014 (ASSESSMENT YEAR : 201112) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE16(2), AAYAKAR BHAWAN BASHEERBAGH, HYDERABAD . APPELLANT V/S M/S. PROGRESSIVE CONSTRUCTIONS LTD. 7 TH FLOOR, RAGAHAVA NORTH BLOCK RAGHAVA RATNA TOWERS CHIRAG ALI LANE, HYDERABAD . RESPONDENT C.O. NO.36/HYD./2015 (ARISING OUT OF ITA NO.1845/HYD./2014) (ASSESSMENT YEAR : 201112) M/S. PROGRESSIVE CONSTRUCTIONS LTD. 7 TH FLOOR, RAGAHAVA NORTH BLOCK RAGHAVA RATNA TOWERS CHIRAG ALI LANE, HYDERABAD . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE16(2), AAYAKAR BHAWAN BASHEERBAGH, HYDERABAD . RESPONDENT REVENUE BY : SHRI J.V. PRASAD, SR. STANDING C OUNSEL ASSESSEE BY: SHRI V. RAGHAVENDRA RAO, A.R. DATE OF HEARING 13.02.2017 DATE OF ORDER 14.02 .2017 O R D E R 2 M/S. PROGRESSIVE CONSTRUCTIONS LTD. PER SAKTIJIT DEY, J.M. THIS SPECIAL BENCH IS CONSTITUTED BY THE HONBLE PRE SIDENT TO DISPOSE OF THE APPEAL FILED BY THE DEPARTMENT ASSAI LING THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS)V, HYDERABAD, AND TO DECIDE THE FOLLOWING IMPORTANT QUESTIONS INVOLVED THEREIN: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, EXPENDITURE INCURRED BY THE ASSESSEE ON CONSTRUCTIO N OF ROAD ON BOT BASIS IS CAPITAL OR REVENUE? IF IT IS CAPITAL E XPENDITURE, WHETHER THE SAME IS ELIGIBLE FOR DEPRECIATION AT TH E RATE APPLICABLE TO BUILDING OR TO AN INTANGIBLE ASSET AS PER SECTIO N 32(1(II)? AND, IF NOT, WHETHER THE SAME BEING REVENUE EXPENDITURE IS LIABLE TO BE AMORTIZED OVER THE PERIOD OF CONCESSION? 2. THE SPECIAL BENCH FINDING THAT THE AFORESAID QUESTI ON DOES NOT ARISE OUT OF THE FACTS INVOLVED IN THE IMPUGNED ASS ESSMENT YEAR PROPOSED TO REFRAME THE QUESTION IN CONSONANCE WITH THE FACTS OBTAINING IN THE IMPUGNED ASSESSMENT YEAR, HEARD BOTH THE PAR TIES AT LENGTH AND AFTER ADDRESSING THE OBJECTIONS OF THE DEPARTMENT ( DISCUSSED IN DETAIL IN THE ORDER DATED 4 TH APRIL 2016, IN M.A. NO.96/HYD./2015, AND THE INTERIM ORDER, HENCE, WE DO NOT CONSIDER IT NECESSA RY TO REITERATE THEM AGAIN IN THIS ORDER) REFRAMED THE QUESTION AS UNDER : WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE EXPENDITURE INCURRED BY THE ASSESSEE FOR CONSTRUCTI ON OF A ROAD UNDER BOT CONTRACT WITH GOI GIVES RISE TO AN ASSET AND IF SO, WHETHER IT IS AN INTANGIBLE ASSET OR TANGIBLE ASSET ? IN CASE IT IS HELD TO BE TANGIBLE ASSET, WHETHER IT IS BUILDING OR PLA NT OR MACHINERY? 3. FACTS NECESSARY FOR DECIDING THE ISSUE AS CULLED OU T FROM RECORD ARE STATED HEREINAFTER BRIEFLY, ASSESSEE A COMPANY IS ENGAGED IN 3 M/S. PROGRESSIVE CONSTRUCTIONS LTD. EXECUTING CIVIL CONTRACT WORK. FOR THE ASSESSMENT Y EAR IN DISPUTE, ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2011, DECLARING INCOME AT NIL UNDER NORMAL PROVISIONS OF THE ACT. S UBSEQUENTLY ASSESSEE ON 26 TH MARCH 2012, FILED A REVISED RETURN OF INCOME DECLA RING TOTAL INCOME OF RS. 19,74,02,080 UNDER THE NORMAL PROVISIONS AND BOOK P ROFIT OF RS.25,24,58,222, UNDER SECTION 115JB OF THE ACT. IN COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ING THAT ASSESSEE HAS CLAIMED DEPRECIATION OF RS. 40,07,94,526 AT THE RATE OF 25% ON THE OPENING WRITTEN DOWN VALUE (WDV) OF BUILT, OPERATE AND TRANSFER (BOT) BRIDGE AT RS.160,31,78,103 EXAMINED THE MATTER FURT HER. HE FOUND THAT ON 22 ND DECEMBER 2005, ASSESSEE HAD ENTERED INTO A CONCESS ION AGREEMENT (HEREINAFTER CALLED C.A) WITH THE GOVER NMENT OF INDIA FOR FOUR LANING OF NATIONAL HIGHWAY NO.9 BETWEEN KM 493 /1000 TO KM 524/1000 IN PUNEHYDERABAD SECTION IN THE STATE OF ANDHRA PRADESH ON BOT BASIS. THE ASSESSEE COMPLETED THE CONSTRUCTION O F THE ROAD AND COMMENCED OPERATION OF THE ROAD FROM 28 TH DECEMBER 2008. THE ASSESSING OFFICER ON VERIFYING THE CONCESSION AGREE MENT FOUND THAT AS PER THE TERMS OF THE AGREEMENT, ASSESSEE WAS TO COM PLETE THE WORK AT ITS OWN COST AND MAINTAIN THE SAME FOR A PERIOD OF 11 YEARS AND AFTER CONCLUSION OF THE SAID PERIOD THE ROAD WAS TO BE HA NDED OVER ON AS IS WHERE IS BASIS TO NHAI. AS PER THE TERMS OF AGREEMENT ASSES SEE IS ENTITLED TO COLLECT TOLL FROM VEHICLES USING THE RO AD AS MENTIONED IN 4 M/S. PROGRESSIVE CONSTRUCTIONS LTD. NATIONAL HIGHWAYS (RATE OF FEE) RULES, 1997, DURING THE CONCESSION PERIOD. REFERRING TO DIFFERENT CLAUSES OF THE CONCE SSION AGREEMENT THE ASSESSING OFFICER FORMED AN OPINION THAT AS THE ASS ESSEE HAS NO RIGHT ON THE ROAD, EXCEPT, FOR MAINTAINING THE ROAD AND RECE IVING TOLL COLLECTIONS DURING THE CONCESSION PERIOD AS PER THE RATES SPECI FIED BY THE GOVERNMENT AND ENTIRE RIGHTS OVER THE ROAD ARE WITH NATIONAL HIGHWAY AUTHORITY OF INDIA, INCLUDING COLLECTION OF TOLL, T HE ASSET ON WHICH THE ASSESSEE HAD CLAIMED DEPRECIATION IS NEITHER A BUIL DING NOR A PLANT AND MACHINERY. HE, THEREFORE, CALLED UPON THE ASSESSEE TO JUSTIFY THE CLAIM OF DEPRECIATION. IN RESPONSE TO THE QUERY RAISED BY THE ASSESSING OFFICER, ASSESSEE SUBMITTED, INVESTMENT MADE BY THE ASSESSEE IN CONSTRUCTING THE ROAD AND ACQUIRING THE RIGHT TO OPERATE THE ROA D AND RECEIVE TOLL CHARGES IS A VALUABLE COMMERCIAL OR BUSINESS RIGHT IN THE NATURE OF INTANGIBLE ASSET, HENCE, IS ELIGIBLE FOR DEPRECIATI ON UNDER SECTION 32(1)(II) OF THE ACT. THE ASSESSING OFFICER, HOWEVE R, REJECTED ASSESSEES CLAIM ON THE REASONING THAT ASSESSEE IS NOT THE OWN ER OF THE ASSET AND SECONDLY, ONLY ROADS WITHIN A FACTORY PREMISES LINK ING VARIOUS BUILDINGS AND APPROACH ROADS IS ELIGIBLE FOR DEPRECIATION. WH ILE COMING TO SUCH A CONCLUSION THE ASSESSING OFFICER ALSO NOTED, ASSESS EE HAS NO CONSISTENCY IN ITS CLAIM AS IN ASSESSMENT YEAR 20102011 ASSESS EE HAD CLAIMED DEPRECIATION ON THE BOTBRIDGE BY TREATING IT AS INT ANGIBLE ASSET. ACCORDINGLY, ASSESSING OFFICER DISALLOWED ASSESSEE S CLAIM OF 5 M/S. PROGRESSIVE CONSTRUCTIONS LTD. DEPRECIATION. BEING AGGRIEVED OF DISALLOWANCE OF DE PRECIATION ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER (A PPEALS). 4. LEARNED COMMISSIONER (APPEALS) AFTER CONSIDERING TH E SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIALS ON RECORD HAVING NOTED THAT IN ASSESSMENT YEAR 201020 11 ASSESSEES CLAIM OF DEPRECIATION BY TREATING THE ASSET AS AN I NTANGIBLE ASSET WAS ALLOWED BY HIM AND THE SAID DECISION WAS CONFIRMED BY THE TRIBUNAL, FOLLOWED THE SAME AND ALLOWED ASSESSEES CLAIM OF D EPRECIATION. BEING AGGRIEVED OF THE AFORESAID DECISION OF THE LEARNED COMMISSIONER (APPEALS), THE DEPARTMENT IS BEFORE US. 5. SHRI J.V. PRASAD, LEARNED SENIOR STANDING COUNSEL A PPEARING FOR THE DEPARTMENT APART FROM MAKING HIS SUBMISSIONS OR ALLY AT THE TIME OF HEARING HAD ALSO FILED A WRITTEN SUBMISSION ON 21 ST JULY 2016. AT THE OUTSET HE SUBMITTED, ASSESSEE IS NOT CONSISTENT AS FAR AS ITS CLAIM OF DEPRECIATION ON BOT-BRIDGE IS CONCERNED. HE SUBMITT ED, IN ASSESSMENT YEAR 200910 ASSESSEE HAD CLAIMED DEPRECIATION BY T REATING IT AS BUILDING. WHEREAS, IN ASSESSMENT YEAR 201011 AND 2 01112 ASSESSEE HAD CLAIMED DEPRECIATION ON BOT-BRIDGE AT A HIGHER R ATE BY TREATING IT AS INTANGIBLE ASSET. HE SUBMITTED, ASSESSEE HAD INC URRED EXPENDITURE OF RS. 214 CRORE OVER A PERIOD IN PURSUANCE TO THE CONCESS ION AGREEMENT WHICH HAS BROUGHT INTO EXISTENCE A TANGIBLE ASSET I N THE FORM OF WIDENED 6 M/S. PROGRESSIVE CONSTRUCTIONS LTD. ROADS, WIDENED BRIDGES, TOLL PLAZA ETC. HOWEVER, AS PER THE TERMS OF CONCESSION AGREEMENT SUCH TANGIBLE ASSETS ARE NOT O NLY OWNED BUT ARE ALSO USED BY THE GOVERNMENT OF INDIA. THEREFORE, AS SESSEE NOT BEING THE OWNER OF THE TANGIBLE ASSET CREATED, IS NOT ENT ITLED TO CLAIM DEPRECIATION UNDER SECTION 32 OF THE ACT. 6. THE LEARNED SENIOR STANDING COUNSEL SUBMITTED, WHAT THE ASSESSEE HAS DONE IS TO MAKE AN INVESTMENT FOR CREA TION OF AN ASSET FOR THE GOVERNMENT OF INDIA, WHILE, SIMULTANEOUSLY ACQU IRING CERTAIN RIGHTS IN THE PROPERTY ENABLING IT TO EARN INCOME BY WAY O F COLLECTION OF TOLL FEE FOR A CERTAIN PERIOD. THUS, IN THE PROCESS RECOVERI NG ITS COST OF INVESTMENT WITH CERTAIN AMOUNT OF PROFIT. IN A WAY, FOR THE ASSESSEE BOT ROADS, BRIDGES ET CETERA ARE STOCK IN TRADE BEING E QUIPMENT OR TOOLS IN ITS TRADE. HE SUBMITTED, UNDOUBTEDLY GOVERNMENT OF INDIA IS THE OWNER AND USER OF THE TANGIBLE ASSET CREATED WITH THE EXP ENDITURE OF RS.214 CRORE. WHEREAS, THE ASSESSEE IS CLAIMING DEPRECIATI ON ON THE VERY SAME ASSET CREATED WITH THE VERY SAME EXPENDITURE BY TRE ATING IT AS INTANGIBLE ASSET. HE SUBMITTED, RIGHT TO CLAIM DEPRECIATION BY TWO DIFFERENT PERSONS ON AN ASSET CREATED OUT OF THE VERY SAME EXPENDITUR E IS INCOMPREHENSIBLE LAND INCONGRUOUS IN LAW. THE LEARN ED SENIOR STANDING COUNSEL SUBMITTED, FOR AN ASSET TO BE CONSIDERED AS AN INTANGIBLE ASSET UNDER SECTION 32(1)(II) OF THE ACT, IT SHOULD BE KN OW HOW, PATENTS, COPYRIGHTS, TRADEMARKS, LICENSES, FRANCHISES OR ANY OTHER BUSINESS OR 7 M/S. PROGRESSIVE CONSTRUCTIONS LTD. COMMERCIAL RIGHTS OF SIMILAR NATURE. HE SUBMITTED, WHILE SIX ITEMS OF INTANGIBLE ASSETS ARE SPECIFICALLY IDENTIFIED, THE UNIDENTIFIED ONES ARE ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE . THEREFORE, APPLYING THE PRINCIPLE OF EJUSDEM GENERIS, ANY OTHE R INTANGIBLE ASSET TO COME WITHIN THE EXPRESSION OTHER BUSINESS OR COMMERCIAL RIGHTS SHOULD BE SIMILAR TO ANY ONE OF THE SIX IDENTIFIED ITEMS. HE SUBMITTED, ASSESSEES CLAIM THAT C.A. IS AKIN TO A LICENSE IS NOT ACCEPTABLE AS NEITHER C.A. IS AN INTANGIBLE ASSET NOR IT IS SIMILAR TO LI CENSE. HE SUBMITTED, AS LICENSE IS NOT DEFINED UNDER THE INCOME TAX ACT, ME ANING OF LICENSE IS TO BE LOOKED INTO UNDER THE INDIAN EASEMENTS ACTS, 1882. REFERRING TO THE DEFINITION OF LICENSE UNDER SECTION 52 OF THE I NDIAN EASEMENTS ACT 1882, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , AS PER THE SAID DEFINITION IN A LICENSE THE RIGHT GIVEN SHOULD NOT AMOUNT TO AN EASEMENT OR AN INTEREST IN THE PROPERTY. HE SUBMITTED, THE T ERMS OF THE CONCESSION AGREEMENT WOULD CLEARLY ESTABLISH THAT THE RIGHTS G IVEN THEREUNDER ARE NEITHER A LICENSE NOR AKIN TO THE SAME. THEREFORE, C.A. HAS NOT GIVEN RISE TO ANY INTANGIBLE ASSET FOR THE ASSESSEE. LEAR NED DEPARTMENTAL REPRESENTATIVE SUBMITTED, EVEN ASSUMING THAT C.A. I S A LICENSE OR AKIN TO LICENSE, THE QUESTION STILL REMAINS AS TO WHAT I NTANGIBLE ASSET HAS BEEN CREATED FOR THE ASSESSEE AND WHAT IS THE EXPEN DITURE INCURRED BY THE ASSESSEE FOR CREATING SUCH INTANGIBLE ASSET. HE SUBMITTED, GOVERNMENT OF INDIA HAD INITIATED A PROCESS FOR CON STRUCTION OF A FOUR LANE HIGHWAY. THE ASSESSEE BEING THE SUCCESSFUL BID DER WAS AWARDED 8 M/S. PROGRESSIVE CONSTRUCTIONS LTD. THE CONTRACT WHICH GAVE RISE TO EXECUTION OF C.A. O N 22 ND DECEMBER 2005. HE SUBMITTED, THE RIGHT CREATED UNDER THE C.A . FOR THE ASSESSEE IS A RIGHT TO COLLECT TOLL. SUCH RIGHT AROSE TO THE ASSESSEE ON THE DATE OF EXECUTION OF THE AGREEMENT ON 22 ND DECEMBER 2005. HE SUBMITTED, AS PER THE TERMS OF THE C.A. ASSESSEE WAS GIVEN RIGHT TO COLLECT TOLL FEES FOR A PERIOD OF 11 YEARS SEVEN MONTHS FROM COMMENCEMENT DATE I.E., THE DATE ON WHICH THE PHYSICAL POSSESSION OF THE PROJEC T SITE IS DELIVERED TO THE ASSESSEE. THEREFORE, HE SUBMITTED, THE INTANGIB LE ASSET, IF AT ALL HAS BEEN ACQUIRED BY THE ASSESSEE IS THE C.A. DATED 22 ND DECEMBER 2005. THUS, ANY EXPENDITURE WHICH MIGHT HAVE BEEN INCURRE D BY THE ASSESSEE BY THAT DATE FOR ACQUISITION OF SUCH INTANGIBLE ASS ET CAN ALONE BE CONSIDERED FOR DEPRECIATION UNDER SECTION 32(1)(II) OF THE ACT. THEREFORE, THE CLAIM OF THE ASSESSEE THAT INVESTMENT OF RS. 214 CRORE MADE BY IT HAS CREATED AN INTANGIBLE ASSET FOR THEM IS UNTENABLE. THE LEARNED SENIOR STANDING COUNSEL SUBMITTED, AT BEST, THE ASSESSEE C OULD HAVE MADE A CLAIM IN TERMS OF CBDT CIRCULAR NO.9 OF 2014, FOR CO NSIDERATION BY THE ASSESSING OFFICER. IN SUPPORT OF HIS CONTENTION, TH OUGH, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS RELIED UPON A NUMBE R OF DECISIONS, AS REFERRED TO IN PAGE18 OF THE WRITTEN SUBMISSIONS, HOWEVER, AT THE TIME OF HEARING HE HAD SPECIFICALLY RELIED UPON THE FOLL OWING DECISIONS:- I) TECHNO SHARES & STOCKS V/S CIT, [2010] 327 ITR 323 (SC); II) CIT V/S SMIFS SECURITIES LTD., [2012] 348 ITR 302 ( SC), AND III) AREVA T. AND D INDIA LTD. V/S DCIT, [2012] 345 ITR 421 (DEL.) 9 M/S. PROGRESSIVE CONSTRUCTIONS LTD. 7. SHRI V. RAGHAVENDRA RAO, LEARNED AUTHORISED REPRESE NTATIVE, APPEARING FOR THE ASSESSEE SUBMITTED, THOUGH, IN TH E FIRST YEAR OF CLAIM OF DEPRECIATION IN ASSESSMENT YEAR 200910 THE ASSE SSEE HAD TREATED IT AS BUILDING, HOWEVER, IN ASSESSMENT YEAR 201011 AS WELL AS 201112, ASSESSEE HAD CLAIMED DEPRECIATION BY TREATING THE R IGHT ACQUIRED FOR OPERATING THE BOTBRIDGE AND COLLECTING TOLL FOR USE R OF SUCH BRIDGE BY VEHICLES AS INTANGIBLE ASSET. HE SUBMITTED, THE ASS ESSEE FOR CONSTRUCTING THE ROAD AND BRIDGE HAS INVESTED HUGE AMOUNT OF RS. 214 CRORE. AND UNDER THE TERMS OF C.A. ASSESSEE WAS NOT GOING TO B E REIMBURSED THE COST OF CONSTRUCTION. THE ONLY WAY THE ASSESSEE CAN RECOVER THE COST OF INVESTMENT ALONG WITH PROFIT IS BY WAY OF OPERATING THE BRIDGE AND COLLECTING TOLL CHARGES FOR USER OF THE BRIDGE BY V EHICLES DURING THE CONCESSION PERIOD OF 11 YEARS AND SEVEN MONTHS. ACC EPTING THE FACT THAT ASSESSEE IS NOT THE OWNER OF THE ROAD AND BRIDGE LE ARNED AUTHORISED REPRESENTATIVE SUBMITTED, THE INVESTMENT MADE BY TH E ASSESSEE IN CONSTRUCTING THE ROAD AND BRIDGE HAD CREATED AN INT ANGIBLE ASSET IN THE FORM OF RIGHT TO OPERATE THE ROAD AND COLLECT TOLL CHARGES. THE LEARNED AUTHORISED REPRESENTATIVE TAKING US THROUGH DIFFERE NT CLAUSES OF THE C.A. SUBMITTED, THE CONCESSION GRANTED BY THE GOVER NMENT OF INDIA IN ALLOWING THE ASSESSEE TO OPERATE THE ROAD AND COLLE CT TOLL CHARGES DURING THE CONCESSION PERIOD AMOUNTS TO GRANT OF LICENSE, HENCE IS AN INTANGIBLE ASSET. HE SUBMITTED, EVEN ASSUMING THAT THE RIGHT A CQUIRED BY THE ASSESSEE TO OPERATE THE ROAD AND COLLECT TOLL CHARG ES IS NOT IN THE NATURE 10 M/S. PROGRESSIVE CONSTRUCTIONS LTD. OF LICENSE, HOWEVER, IT CERTAINLY FALLS WITHIN THE CATEGORY OF ANY OTHER BUSINESS OR COMMERCIAL RIGHT OF SIMILAR NATURE AS P ROVIDED UNDER SECTION 32(1)(II) OF THE ACT. HE SUBMITTED, APART FROM THE RIGHT TO OPERATE THE ROAD AND COLLECT TOLL CHARGES THE ASSESSEE WAS NOT GIVEN ANY OTHER BENEFIT UNDER THE C.A. THEREFORE, THE RIGHT GIVEN F OR OPERATING BOT- BRIDGE AND COLLECTING TOLL CHARGES FOR USER OF THE ROAD AND BRIDGE IS A VALUABLE COMMERCIAL RIGHT ACQUIRED BY THE ASSESSEE BY INVESTING IN THE CONSTRUCTION OF THE ROAD AND BRIDGE. IN SUPPORT OF HIS CONTENTION LEARNED AUTHORISED REPRESENTATIVE RELIED UPON THE DECISION OF THE TRIBUNAL, PUNE BENCH, IN ASHOKA INFO PVT. LTD. V/S ACIT, [2009] 123 TTJ 77 (PUNE). 8. WE HAVE PATIENTLY AND CAREFULLY CONSIDERED THE RIVA L SUBMISSIONS, PERUSED THE MATERIALS ON RECORD AS WELL AS THE DECI SION CITED AT THE BAR. 9. THE CORE ISSUE ARISING FOR CONSIDERATION IN TH IS APPEAL IS IN RELATION TO ASSESSEES 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 CONCESSION PERIOD OF 11 YEARS AND 7 MONTH. IT IS A FACT ON RECORD THAT THE ASSESSEE COMPLETED THE CONSTRUCTION OF THE PROJECT IN THE FINANCIAL YEAR 200809 AND HAD STARTED OPERATIN G THE SAME. IT IS ALSO EVIDENT, IN THE ASSESSMENT YEAR 200910, THE A SSESSEE HAD CLAIMED DEPRECIATION @ 10% BY TREATING THE ASSET AS BUILDIN G. HOWEVER, FROM 11 M/S. PROGRESSIVE CONSTRUCTIONS LTD. THE ASSESSMENT YEAR 201011, THE ASSESSEE HAD START ED CLAIMING DEPRECIATION BY TREATING THE ASSET CREATED AS AN IN TANGIBLE ASSET IN TERMS OF SECTION 32(1)(II) OF THE ACT. WE HAVE ALSO BEEN INFORMED THAT ASSESSEES CLAIM OF DEPRECIATION IN ASSESSMENT YEAR 200910 AND 2010 11, WERE DISALLOWED BY THE ASSESSING OFFICER. HOWEV ER, THE LEARNED COMMISSIONER (APPEALS) ALLOWED ASSESSEES CLAIM OF DEPRECIATION AS BUILDING IN ASSESSMENT YEAR 200910 AND AS INTANGIB LE ASSET IN ASSESSMENT YEAR 201011. THE AFORESAID ORDERS OF T HE LEARNED COMMISSIONER (APPEALS) WERE ALSO UPHELD BY THE TRIB UNAL WHILE DISMISSING DEPARTMENTS APPEALS ON THE ISSUE. IT IS STATED THAT THE DEPARTMENT HAS CHALLENGED THE DECISIONS OF THE TRIB UNAL IN ASSESSMENT YEAR 200910 AND 201011 IN FURTHER APPEAL BEFORE T HE HIGH COURT OF ANDHRA PRADESH AND TELANGANA AND THE MATTERS ARE ST ILL PENDING. BE THAT AS IT MAY, THE AFORESAID FACTS CLEARLY INDICAT E THAT THE IMPUGNED ASSESSMENT YEAR IS NOT THE FIRST YEAR OF CLAIM OF D EPRECIATION ON THE BOT ROAD / BRIDGE. RATHER, IN THE IMPUGNED ASSESSMENT Y EAR, DEPRECIATION HAS BEEN CLAIMED ON THE OPENING WDV WHICH HAS ALSO BEEN ACCEPTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE IN THE WRIT TEN SUBMISSIONS FILED BY HIM. THEREFORE, THE NATURE OF EXPENDITURE, WHETHER CAPITAL OR REVENUE, IS NOT A SUBJECT MATTER OF DISPUTE ARISING IN THE PRESENT APPEAL. BEARING THIS IN MIND, WE HAVE TO EXAMINE THE VALIDIT Y OF ASSESSEES CLAIM OF DEPRECIATION QUA THE ASSET CREATED. THE LEARNED DEPARTMENTAL 12 M/S. PROGRESSIVE CONSTRUCTIONS LTD. REPRESENTATIVE HAS OPPOSED ASSESSEES CLAIM OF DEPR ECIATION ON THE FOLLOWING PROPOSITIONS: I) WHETHER THE EXPENDITURE CLAIM OF THE ASSESSEE BRING S INTO BEING AN ASSET WHICH IS OWNED AND USED BY THE ASSESSEE IN ITS BUSINESS; II) WHAT IS THE NATURE OF THE ASSET THAT HAS COME INTO BEING ON ACCOUNT OF THE EXPENDITURE INCURRED BY THE ASSESSEE AND WHAT IS THE NATURE OF SUCH EXPENDITURE; III) IF AN ASSET IS CREATED, WHETHER IT IS A TANGIBLE AS SET OR AN INTANGIBLE ASSET; IV) WHETHER THE CONCESSIONAIRE AGREEMENT (C.A) HELD BY THE ASSESSEE CAN BE REGARDED AS A COMMERCIAL OR BUSINES S 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 EXPENDITUR E INCURRED BY THE ASSESSEE FOR ACQUIRING SUCH INTANGIBLE ASSET . 10. BEFORE DEALING WITH THE ISSUE, IT IS NECESSARY TO RE ITERATE THAT THE GOVERNMENT OF INDIA BEING DESIROUS OF IMPLEMENTING A PROJECT INVOLVING, CONSTRUCTION, OPERATION AND MAINTENANCE OF FOUR LAN E PUNE HYDERABAD SECTION OF N.H. NO.9, WITH PRIVATE SECTOR PARTICIPA TION OF BOT INVITED TENDER FROM INTERESTED PARTIES. THE ASSESSEE BEING SUCCESSFUL IN THE TENDER, THE GOVERNMENT OF INDIA ENTERED INTO A CONC ESSION AGREEMENT (C.A) WITH THE ASSESSEE ON 22 ND DECEMBER 2005. AT THIS STAGE, IT IS NECESSARY TO LOOK INTO SOME OF THE RELEVANT CLAUSES OF C.A., WHICH IN OUR 13 M/S. PROGRESSIVE CONSTRUCTIONS LTD. OPINION, WILL HAVE A CRUCIAL BEARING IN DECIDING TH E 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, S TUDY, DESIGN, ENGINEER, PROCURE, FINANCE, CONSTRUCT, OPERATE AND MAINTAIN T HE PROJECT AND TO EXERCISE AND/OR ENJOY THE RIGHTS, POWERS, PRIVILEGE S, AUTHORIZATIONS AND ENTITLEMENTS IN TERMS OF THE AGREEMENT INCLUDING TH E RIGHT TO LEVY DEMAND, COLLECT AND APPROPRIATE FEE FROM VEHICLE AN D PERSONS FOR USING THE PROJECT / PROJECT FACILITIES OR ANY PART THEREO F. AS PER CLAUSE 2.2 OF THE C.A., THE ASSESSEE IS GRANTED CONCESSION FOR A PERIOD OF 11 YEARS 7 MONTHS FROM THE COMMENCEMENT DATE. AS PER CLAUSE 2. 4, THE GOVERNMENT OF INDIA WAS OBLIGED TO HAND OVER TO THE ASSESSEE PHYSICAL POSSESSION OF THE PROJECT SITE FREE FROM ENCUMBRANC ES WITHIN 30 DAYS FROM THE DATE OF THE AGREEMENT. IT FURTHER PROVIDES , ONCE THE PROJECT SITE IS HANDED OVER TO THE CONCESSIONAIRE, IT SHALL HAVE EXCLUSIVE RIGHT TO ENTER UPON, OCCUPY AND USE THE PROJECT SITE AND TO MAKE AT ITS COSTS, CHARGES AND EXPENSES SUCH DEVELOPMENT AND IMPROVEME NT IN THE PROJECT SITE AS MAY BE NECESSARY OR APPROPRIATE TO IMPLEMENT THE PROJECT AND TO PROVIDE PROJECT FACILITY IN TERMS OF THE AGREEMENT. CLAUSE 2.5 OF THE AGREEMENT PROVIDES THAT THE CONCESSIONAI RE WITHOUT PRIOR WRITTEN CONSENT OR APPROVAL OF THE GOVERNMENT OF IN DIA CANNOT USE THE PROJECT SITE FOR ANY PURPOSE, OTHER THAN, FOR THE P URPOSE OF THE PROJECT / PROJECT FACILITIES AS PERMITTED UNDER THE C.A. CL AUSE 2.7 OF THE C.A. MAKES IT CLEAR THAT THE PROJECT SITE BELONGS TO AND HAS VESTED IN 14 M/S. PROGRESSIVE CONSTRUCTIONS LTD. GOVERNMENT OF INDIA AND THE GOVERNMENT OF INDIA HAS FULL POWER TO HOLD, DISPOSE OFF AND DEAL WITH THE SAME CONSISTENT WITH THE PROVISIONS OF THE C.A. HOWEVER, IT ALSO MAKES IT CLEAR THAT TH E CONCESSIONAIRE, SUBJECT TO COMPLYING WITH THE TERMS / CONDITIONS OF THE AGREEMENT REMAINS IN PEACEFUL POSSESSION AND ENJOYMENT OF THE PROJECT SITE DURING THE CONCESSION PERIOD. IT FURTHER PROVIDES, IN THE EVENT THE CONCESSIONAIRE IS OBSTRUCTED BY ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST OVER THE PROJECT SITE OR ANY PART THEREOF OR IN THE EVENT OF ANY ENFORCEABLE ACTION INCLUDING ANY ATTACHMENT, DISTRA INT, APPOINTMENT OF RECEIVER OR LIQUIDATOR BEING INITIATED BY ANY PERSO N CLAIMING INTEREST OVER THE PROJECT SITES. GOVERNMENT OF INDIA NOT ONLY WIL L DEFEND SUCH CLAIMS OR PROCEEDINGS BUT ALSO KEEP THE CONCESSIONAIRE INDEMNIFIED AGAINST ANY DIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHICH IT MAY SUFFER ON ACCOUNT OF ANY SUCH RIGHT, TITLE, INTEREST OR CHARGE. AS PE R CLAUSE 2.8 OF THE C.A., THOUGH, THE CONCESSIONAIRE SHALL HAVE EXCLUSIVE RIG HT TO USE OF THE PROJECT SITE IN ACCORDANCE WITH THE PROVISIONS OF T HE AGREEMENT AND FOR THIS PURPOSE, IT MAY REGULATE 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 TH E 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 NOT IFICATION TO BE ISSUED BY THE GOVERNMENT OF INDIA. HOWEVER, CONCESSIONAIRE CANNOT LEVY AND 15 M/S. PROGRESSIVE CONSTRUCTIONS LTD. COLLECT ANY FEE UNTIL IT HAS RECEIVED COMPLETION CE RTIFICATE. CLAUSE 5.1 AND 5.2 OF THE C.A. LAYS DOWN THE OBLIGATION OF THE CONCESSIONAIRE FOR EXECUTION AND IMPLEMENTATION OF THE PROJECT / PROJE CT FACILITY DURING THE CONCESSION PERIOD. FROM THE READING OF THE AFORESAI D 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 CONCESSIONAIR E FOR EXECUTING / IMPLEMENTING THE PROJECT AND OPERATING THE SAME DURING THE CONCESSION PERIOD; III) CONCESSIONAIRE SHALL HAVE EXCLUSIVE RIGHT TO USE TH E PROJECT SITE FOR EXECUTING / IMPLEMENTING THE PROJE CT IN TERMS OF C.A; IV) CONCESSIONAIRE SHALL, AT ITS OWN COSTS AND EXPENSES , EXECUTE / IMPLEMENT THE ENTIRE PROJECT AND OPERATE AND MAINTAIN THE SAME DURING THE CONCESSION PERIOD; AND V) THE CONCESSIONAIRE SHALL HAVE THE RIGHT TO LEVY / D EMAND AND COLLECT FEE AS APPROVED BY THE GOVERNMENT OF IN DIA TOWARDS USER OF THE PROJECT FACILITIES BY VEHICLES AND PERSONS. 11. UNDISPUTEDLY, FOR EXECUTING THE PROJECT, ASSESSEE HA S INCURRED EXPENSES OF RS. 214 CRORE. IT IS ALSO NOT DISPUTED THAT AS PER THE TERMS 16 M/S. PROGRESSIVE CONSTRUCTIONS LTD. OF THE C.A., THE GOVERNMENT OF INDIA IS NOT OBLIGED / REQUIRED TO REIMBURSE THE COST INCURRED BY THE ASSESSEE TO EXEC UTE / IMPLEMENT THE PROJECT FACILITIES. THE ONLY RIGHT / BENEFIT ALLOWE D TO THE ASSESSEE BY THE GOVERNMENT OF INDIA IS TO OPERATE THE PROJECT / PRO JECT FACILITIES DURING THE CONCESSION PERIOD OF 11 YEARS 7 MONTHS AND TO C OLLECT TOLL CHARGES FROM VEHICLES / PERSONS USING THE PROJECT / PROJECT FACILITIES. THUS, AS COULD BE SEEN, THE ONLY MANNER IN WHICH THE ASSESSE E CAN RECOUP THE COST INCURRED BY IT IN IMPLEMENTING THE PROJECT / P ROJECT FACILITY IS TO OPERATE THE ROAD DURING THE CONCESSION PERIOD AND C OLLECT THE TOLL CHARGES FROM USER OF THE PROJECT FACILITY BY THIRD PARTIES. ADMITTEDLY, THE ASSESSEE HAS TAKEN UP THE PROJECT AS A BUSINESS VEN TURE WITH A PROFIT MOTIVE AND CERTAINLY NOT AS A WORK OF CHARITY. FURT HER, BY INVESTING HUGE SOME OF RS.214 CRORE, THE ASSESSEE HAS OBTAINED A V ALUABLE BUSINESS / COMMERCIAL RIGHT TO OPERATE THE PROJECT FACILITY AN D COLLECT TOLL CHARGES. THEREFORE, IN OUR CONSIDERED OPINION, RIGHT ACQUIRE D BY THE ASSESSEE FOR OPERATING THE PROJECT FACILITY AND COLLECTING TOLL CHARGES IS AN INTANGIBLE ASSET CREATED BY THE ASSESSEE BY INCURRING THE EXPE NSES OF RS. 214 CRORE. THE CONTENTION OF THE LEARNED SENIOR STANDING COUNS EL THAT EXPENDITURE OF RS.214 CRORE HAS BROUGHT INTO EXISTENCE A TANGIB LE ASSET IN THE FORM OF ROADS AND BRIDGES OF WHICH THE ASSESSEE IS NOT T HE OWNER BUT IT IS THE GOVERNMENT OF INDIA IS NOBODYS CASE. FURTHER, THE LEARNED SENIOR STANDING COUNSELS APPREHENSION THAT IT WILL LEAD T O A SITUATION WHERE 17 M/S. PROGRESSIVE CONSTRUCTIONS LTD. BOTH GOVERNMENT OF INDIA AND THE CONCESSIONAIRE WI LL CLAIM DEPRECIATION ON THE ASSET CREATED WITH THE VERY SAME EXPENDITURE , IN OUR VIEW, IS NOT BORNE OUT FROM FACTS ON RECORD. AT THE COST OF REPE TITION 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 AGR EEMENT 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 VE RY 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 CON CESSION PERIOD. THEREFORE, ASSESSEE HAS CAPITALIZED THE COST INCURR ED 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 CREATI NG THE PROJECT OR PROJECT FACILITIES HAS CREATED AN INTANGIBLE ASSET IN THE FORM OF RIGHT TO OPERATE THE PROJECT FACILITY AND COLLECT TOLL CHARG ES. FURTHER, IT IS THE CONTENTION OF THE LEARNED SENIOR STANDING COUNSEL T HAT 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 OF AGREEMENT I.E. , 22 ND DECEMBER 2005, THEREFORE, THE EXPENDITURE INCURRED BY SUCH D ATE SHOULD BE THE VALUE OF INTANGIBLE ASSET WHICH CAN ALONE BE CONSID ERED FOR DEPRECIATION UNDER SECTION 32(1)(II) OF THE ACT. WE ARE AFRAID, WE CANNOT ACCEPT THE 18 M/S. PROGRESSIVE CONSTRUCTIONS LTD. ABOVE ARGUMENT OF THE LEARNED SENIOR STANDING COUNS EL. WHEN THE C.A. CONFERS A RIGHT ON THE ASSESSEE TO OPERATE THE PROJ ECT FACILITY AND COLLECT TOLL CHARGES OVER THE CONCESSION PERIOD OF 11 YEARS AND 7 MONTHS, THE ASSESSEE CAN START OPERATING AND COLLECTING TOLL CH ARGES ONLY WHEN THE PROJECT FACILITY IS READY FOR USE. THEREFORE, UNTIL THE PROJECT IS COMPLETED AND READY FOR USE BY VEHICLES OR PERSONS ASSESSEE C ANNOT COLLECT TOLL CHARGES FOR USER OF THE PROJECT FACILITIES. THUS, T HE RIGHT TO OPERATE THE PROJECT FACILITY AND COLLECT TOLL CHARGES IS INTEGR ALLY CONNECTED TO THE COMPLETION OF THE PROJECT FACILITY WHICH CANNOT BE DONE UNLESS THE ASSESSEE INVESTS ITS FUND FOR COMPLETING THE PROJEC T. 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 EXECUTIO N 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 AND COMPLETING THE PROJECT FACILITY, ASSESSEE WOULD BE COLLECTING TOLL CHARGES. THEREFORE, THE CONTENTION OF THE LEARNED SENIOR STA NDING COUNSEL THAT THE EXPENDITURE INCURRED BY THE ASSESSEE TILL EXECU TION OF THE AGREEMENT CAN ONLY BE CONSIDERED AS AN INTANGIBLE ASSET, IN O UR VIEW, IS ILLOGICAL, HENCE, CANNOT BE ACCEPTED. THUS, HAVING HELD THAT T HE EXPENDITURE OF RS.214 CRORE INCURRED BY THE ASSESSEE HAS RESULTED IN CREATION OF AN INTANGIBLE ASSET OF ENDURING NATURE FOR THE ASSESSE E, IT IS NECESSARY NOW TO EXAMINE WHETHER SUCH INTANGIBLE ASSET COMES WITH IN THE SCOPE AND AMBIT OF SECTION 32(1)(II) OF THE ACT. FOR THIS PUR POSE, IT IS NECESSARY TO 19 M/S. PROGRESSIVE CONSTRUCTIONS LTD. LOOK INTO THE SAID PROVISION WHICH IS REPRODUCED HE REUNDER FOR THE SAKE OF CONVENIENCE. DEPRECIATION. 32(1)(II) KNOW-HOW, PATENTS, COPYRIGHTS, TRADE MARK S, LICENCES, FRANCHISES OR ANY OTHER BUSINESS OR COMMERCIAL RIGH TS OF SIMILAR NATURE 67 , BEING INTANGIBLE ASSETS ACQUIRED ON OR AFTER THE 1ST DAY OF APRIL, 1998, OWNED 67 , WHOLLY OR PARTLY, BY THE ASSESSEE 67 AND USED FOR THE PURPOSES OF THE BUSINESS 67 OR PROFESSION, THE FOLLOWING DEDUCTIONS SHALL BE ALLOWED] 12. EXPLANATION 3 TO SECTION 32(1) DEFINES INTANGIBLE A SSET AS UNDER: 85 [EXPLANATION 3.FOR THE PURPOSES OF THIS SUB-SECTIO N, 86 [THE EXPRESSION ASSETS ] SHALL MEAN (A) TANGIBLE ASSETS, BEING BUILDINGS, MACHINERY, PL ANT OR FURNITURE; (B) INTANGIBLE ASSETS, BEING KNOW-HOW, PATENTS, COP YRIGHTS, TRADE MARKS, LICENCES, FRANCHISES OR ANY OTHER BUSINESS O R COMMERCIAL RIGHTS OF SIMILAR NATURE 87 . 13. A PLAIN READING OF THE AFORESAID PROVISIONS WOULD I NDICATE THAT CERTAIN KIND OF ASSETS BEING KNOWHOW, PATENTS, COPY RIGHTS, TRADEMARKS, LICENSE, FRANCHISE, OR ANY OTHER BUSINESSES OR COMM ERCIAL RIGHTS OF SIMILAR NATURE ARE TO BE TREATED AS INTANGIBLE ASSE T AND WOULD BE ELIGIBLE FOR DEPRECIATION AT THE SPECIFIED RATE. IT IS THE C LAIM OF THE ASSESSEE THAT THE RIGHT ACQUIRED UNDER C.A. TO OPERATE THE PROJEC T FACILITY AND COLLECT TOLL CHARGES IS IN THE NATURE OF LICENSE. HOWEVER, THE LEARNED SENIOR STANDING COUNSEL HAS STRONGLY COUNTERED THE AFORESA ID 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 20 M/S. PROGRESSIVE CONSTRUCTIONS LTD. REPRODUCE HEREIN BELOW THE DEFINITION OF LICENSE AS PROVIDED UNDER SECTION 52 OF THE INDIAN EASEMENTS ACT, 1882: LICENSE DEFINED: WHERE ON PERSON GRANTS TO ANOTH ER, 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, S OMETHING WHICH WOULD, IN THE ABSENCE OF SUCH RIGHT, BE UNLAWFUL AN D SUCH RIGHT DOES NOT AMOUNT TO AN EASEMENT OR AN INTEREST IN THE PRO PERTY, THE RIGHT IS CALLED A LICENSE. 14. IT HAS BEEN THE CONTENTION OF THE LEARNED SENIOR ST ANDING 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 AFORESAI D 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 O R CONTINUE TO DO SOMETHING IN THE IMMOVABLE PROPERTY OF THE GRANTOR, WHICH, IN THE ABSENCE OF SUCH RIGHT WOULD BE UNLAWFUL AND SUCH RI GHT DOES NOT AMOUNT TO AN EASEMENT OR INTEREST IN THE PROPERTY, THEN SU CH RIGHT IS CALLED A LICENSE. IF WE EXAMINE THE FACTS OF THE PRESENT CAS E, VISAVIS, THE DEFINITION OF LICENSE UNDER THE INDIAN EASEMENTS AC T, 1882, IT WOULD BE CLEAR THAT IMMOVABLE PROPERTY ON WHICH THE PROJECT / PROJECT FACILITY IS EXECUTED / IMPLEMENTED IS OWNED BY THE GOVERNMENT O F INDIA AND IT HAS FULL POWER TO HOLD, DISPOSE OFF AND DEAL WITH THE I MMOVABLE PROPERTY. BY VIRTUE OF THE C.A., ASSESSEE HAS ONLY BEEN GRANTED A LIMITED RIGHT TO EXECUTE THE PROJECT AND OPERATE THE PROJECT FACILIT Y DURING THE 21 M/S. PROGRESSIVE CONSTRUCTIONS LTD. CONCESSION PERIOD, ON EXPIRY OF WHICH THE PROJECT / PROJECT FACILITY WILL REVERT BACK TO THE GOVERNMENT OF INDIA. WHAT THE GO VERNMENT OF INDIA HAS GRANTED TO THE ASSESSEE IS THE RIGHT TO USE THE PROJECT SITE DURING THE CONCESSION PERIOD AND IN THE ABSENCE OF SUCH RI GHT, IT WOULD HAVE BEEN UNLAWFUL ON THE PART OF THE CONCESSIONAIRE TO DO OR CONTINUE TO DO ANYTHING ON SUCH PROPERTY. HOWEVER, THE RIGHT GRANT ED TO THE CONCESSIONAIRE HAS NOT CREATED ANY RIGHT, TITLE OR INTEREST OVER THE PROPERTY. THE RIGHT GRANTED BY THE GOVERNMENT OF IN DIA TO THE ASSESSEE UNDER THE C.A. HAS A LICENSE PERMITTING THE ASSESSE E TO DO CERTAIN ACTS AND DEEDS WHICH OTHERWISE WOULD HAVE BEEN UNLAWFUL OR NOT POSSIBLE TO DO IN THE ABSENCE OF THE C.A. THUS, IN OUR VIEW, TH E RIGHT GRANTED TO THE ASSESSEE UNDER THE C.A. TO OPERATE THE PROJECT / PR OJECT FACILITY AND COLLECT TOLL CHARGES IS A LICENSE OR AKIN TO LICENS E, 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 UNDE R SECTION 32(1)(II) OF THE ACT. IN THIS CONTEXT, IT HAS BEEN THE CONTEN TION OF THE LEARNED SENIOR STANDING COUNSEL THAT THE INTANGIBLE ASSET M ENTIONED UNDER SECTION 32(1)(II) OF THE ACT ARE SPECIFICALLY IDENT IFIED ASSETS, EXCEPT, THE ASSETS TERMED AS ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR 22 M/S. PROGRESSIVE CONSTRUCTIONS LTD. NATURE . HE HAD SUBMITTED, APPLYING THE PRINCIPLE OF EJUSD EM 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 SUC H EXPRESSION. THE AFORESAID CONTENTION OF THE LEARNED DEPARTMENTAL RE PRESENTATIVE IS UNACCEPTABLE FOR THE REASONS ENUMERATED HEREINAFTER . 16. WE HAVE ALREADY HELD EARLIER IN THE ORDER THAT BY I NCURRING THE EXPENDITURE OF `RS.2 14 CRORE ASSESSEE HAS ACQUIRED THE RIGHT TO OPERATE THE PROJECT AND COLLECT TOLL CHARGES. THEREFORE, SU CH RIGHT ACQUIRED BY THE ASSESSEE IS A VALUABLE BUSINESS OR COMMERCIAL R IGHT BECAUSE THROUGH SUCH MEANS, THE ASSESSEE IS GOING TO RECOUP NOT ONL Y THE COST INCURRED IN EXECUTING THE PROJECT BUT ALSO WITH SOME AMOUNT OF PROFIT. THEREFORE, THERE CANNOT BE ANY DISPUTE THAT THE RIGHT TO OPERA TE THE PROJECT FACILITY AND COLLECT TOLL CHARGES THEREFROM IN LIEU OF THE E XPENDITURE INCURRED IN EXECUTING THE PROJECT IS AN INTANGIBLE ASSET CREATE D FOR THE ENDURING BENEFIT OF THE ASSESSEE. NOW, IT HAS TO BE SEEN WHE THER 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 LI KE 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 O F THE TOOL OF THE 23 M/S. PROGRESSIVE CONSTRUCTIONS LTD. 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 EXP RESSION ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE . THE HON'BLE SUPREME COURT IN CIT V/S SMIFS SECURITIES (SUPRA) AFTER INT ERPRETING THE DEFINITION OF INTANGIBLE ASSET AS PROVIDED IN EXPLANATION 3 TO SECTION 32(1), WHILE OPINING THAT PRINCIPLE OF EJUSDEM GENERIS WOULD STR ICTLY APPLY IN INTERPRETING THE DEFINITION OF INTANGIBLE ASSET AS PROVIDED BY EXPLANATION 3(B) OF SECTION 32, AT THE SAME TIME, HELD THAT EVE N APPLYING THE SAID PRINCIPLE GOODWILL WOULD FALL UNDER THE EXPRESSIO N ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE. THUS, AS COULD BE SEEN, EVEN THOUGH, GOODWILL IS NOT ONE OF THE SPECIFICALLY I DENTIFIABLE ASSETS PRECEDING THE EXPRESSING ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE , HOWEVER, THE HON'BLE SUPREME COURT HELD THAT GOO DWILL WILL COME WITHIN THE EXPRESSION ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE . THEREFORE, THE CONTENTION OF THE LEARNED SENIOR STANDING COUNSEL THAT TO COME WITHIN THE EXPRESSION ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE THE INTANGIBLE ASSET SHOULD BE AKIN TO ANY ONE OF THE SPECIFICALLY IDENT IFIABLE ASSETS IS NOT A CORRECT INTERPRETATION OF THE STATUTORY PROVISIONS. HAD IT BEEN THE CASE, THEN GOODWILL WOULD NOT HAVE BEEN TREATED AS AN I NTANGIBLE ASSET. THE HON'BLE DELHI HIGH COURT IN CASE OF AREVA T AND D I NDIA LTD. (SUPRA), WHILE INTERPRETING THE AFORESAID EXPRESSION BY APPL YING THE PRINCIPLES OF 24 M/S. PROGRESSIVE CONSTRUCTIONS LTD. 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, LICENS E OR FRANCHISES, BUT MUST BE OF SIMILAR NATURE AS THE SPECIFIED ASSET. T HE COURT OBSERVED, LOOKING AT THE MEANING OF CATEGORIES OF SPECIFIED I NTANGIBLE ASSETS REFERRED TO IN SECTION 32(1)(II) OF THE ACT PRECEDI NG 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 I NTEND TO PROVIDE FOR DEPRECIATION ONLY IN RESPECT OF SPECIFIED INTANGIBL E ASSETS BUT ALSO TO OTHER CATEGORIES OF INTANGIBLE ASSETS WHICH WERE NE ITHER VISIBLE NOR POSSIBLE TO EXHAUSTIVELY ENUMERATE. THE HON'BLE COU RT, THEREFORE OBSERVED, IN THE CIRCUMSTANCES THE NATURE OF BUSINE SS OR COMMERCIAL RIGHT CANNOT BE RESTRICTED ONLY TO KNOWHOW, PATENTS , TRADEMARKS, COPYRIGHTS, LICENCE OR FRANCHISE. THE COURT OBSERVE D, ANY INTANGIBLE ASSETS WHICH ARE INVALUABLE AND RESULT IN SMOOTHLY CARRYING ON THE BUSINESS AS PART OF THE TOOL OF THE TRADE OF THE AS SESSEE WOULD COME WITHIN THE EXPRESSION ANY OTHER BUSINESS OR COMMERCIAL RIGHT OF SIMILAR NATURE . 25 M/S. PROGRESSIVE CONSTRUCTIONS LTD. 17. IN THE CASE OF TECHNO SHARES AND STOCKS LTD. V/S CI T, [2010] 327 ITR 323 (SC), THE HON'BLE SUPREME COURT WHILE EXAMI NING THE ASSESSEES CLAIM OF DEPRECIATION ON BSE MEMBERSHIP CARD, AFTER INTERPRETING THE PROVISIONS OF SECTION 32(1)(II), H ELD THAT AS THE MEMBERSHIP CARD ALLOWS A MEMBER TO PARTICIPATE IN A TRADING SESSION ON THE FLOOR OF THE EXCHANGE, SUCH MEMBERSHIP IS A BUS INESS OR COMMERCIAL RIGHT, HENCE, SIMILAR TO LICENSE OR FRANCHISE, THER EFORE, AN INTANGIBLE ASSET. IN THE PRESENT CASE, UNDISPUTEDLY BY VIRTUE OF C.A. THE ASSESSEE HAS ACQUIRED THE RIGHT TO OPERATE THE TOLL ROAD / B RIDGE AND COLLECT TOLL CHARGES IN LIEU OF INVESTMENT MADE BY IT IN IMPLEME NTING THE PROJECT. THEREFORE, THE RIGHT TO OPERATE THE TOLL ROAD / BRI DGE AND COLLECT TOLL CHARGES IS A BUSINESS OR COMMERCIAL RIGHT AS ENVISA GED UNDER SECTION 32(1)(II) R/W EXPLANATION 3(B) OF THE SAID PROVISIO NS. THEREFORE, IN OUR CONSIDERED OPINION, THE ASSESSEE IS ELIGIBLE TO CLA IM DEPRECIATION ON WDV AS AN INTANGIBLE ASSET. THUS, WE ANSWER THE QUESTIO N FRAMED BY THE SPECIAL BENCH AS UNDER: THE EXPENDITURE INCURRED BY THE ASSESSEE FOR CONSTR UCTION OF ROAD UNDER BOT CONTRACT BY THE GOVERNMENT OF INDIA HAS G IVEN RISE TO AN INTANGIBLE ASSET AS DEFINED UNDER EXPLANATION 3( B) R/W SECTION 32(1)(II) OF THE ACT. HENCE, ASSESSEE IS ELIGIBLE T O CLAIM DEPRECIATION ON SUCH ASSET AT THE SPECIFIED RATE. 26 M/S. PROGRESSIVE CONSTRUCTIONS LTD. 18. IN VIEW OF OUR AFORESAID CONCLUSION, THERE IS NO NE ED TO ANSWER THE SECOND PART OF THE QUESTION FRAMED. THIS DISPOSES O F GROUNDS NO.2, 3, 5 AND 6. 19. INSOFAR AS GROUND NO.4 IS CONCERNED, IT IS THE CONT ENTION OF THE DEPARTMENT THAT THE LEARNED COMMISSIONER (APPEALS) SHOULD HAVE DIRECTED FOR AMORTIZATION OF THE EXPENSES INCURRED FOR CONSTRUCTION OF BOT ROAD IN TERMS OF CBDT CIRCULAR NO.9 OF 2014 DATED 23 RD APRIL 2014. 20. AS ALREADY DISCUSSED IN THE EARLIER PART OF THE ORD ER AND DEALT IN DETAIL IN ORDER DATED 4 TH APRIL 2016, IN M.A. NO.96/HYD./2015, THE NATURE OF EXPENSES WHETHER CAPITAL OR REVENUE IS NOT THE S UBJECT MATTER OF DISPUTE IN THE PRESENT APPEAL, AS THE EXPENDITURE I NCURRED HAS ALREADY BEEN CONSIDERED AS CAPITAL EXPENDITURE IN THE PRECE DING ASSESSMENT YEARS AND ASSESSEES CLAIM OF DEPRECIATION HAVE BEE N ALLOWED. THEREFORE, IN THE IMPUGNED ASSESSMENT YEAR, THE CLA IM IS LIMITED TO DEPRECIATION ON THE WDV ON BLOCK OF ASSETS ONLY. TH E ISSUE WHETHER THE EXPENDITURE INCURRED IS A DEFERRED REVENUE EXPENSES OR NOT WAS NOT THE SUBJECT MATTER OF CONSIDERATION EITHER BY THE ASSES SING OFFICER OR BY THE LEARNED COMMISSIONER (APPEALS). TAKING INTO CONSIDE RATION THE AFORESAID FACT, THE TRIBUNAL HAD REFRAMED THE QUES TION BY LIMITING THE ISSUE ONLY TO THE DETERMINATION OF NATURE OF ASSET, WHETHER TANGIBLE OR INTANGIBLE. IN FACT, THE LEARNED DEPARTMENTAL REPRE SENTATIVE HAS ALSO ACCEPTED THE AFORESAID FACTUAL POSITION. IN ANY CAS E OF THE MATTER, THE 27 M/S. PROGRESSIVE CONSTRUCTIONS LTD. ASSESSEE NEITHER IN THE PRECEDING ASSESSMENT YEARS NOR IN THE IMPUGNED ASSESSMENT YEAR HAS CLAIMED IT AS DEFERRED REVENUE EXPENDITURE, HENCE, THERE IS NO SCOPE TO EXAMINE WHETHER THE EXPENDITUR E COULD HAVE BEEN AMORTIZED OVER THE CONCESSION PERIOD IN TERMS OF CB DT CIRCULAR NO.9. MOREOVER, THE AFORESAID CBDT CIRCULAR IS FOR THE BE NEFIT OF THE ASSESSEE. THEREFORE, THE BENEFIT IN TERMS OF THE CIRCULAR CAN BE GRANTED, PROVIDED, ASSESSEE MAKES A CLAIM IN TERMS OF IT. THE BENEFIT OF THE CIRCULAR CANNOT BE THRUST UPON THE ASSESSEE IF IT IS NOT CLAIMED. T HEREFORE, SINCE THE ISSUE, AS RAISED IN GROUND NO.4, DOES NOT ARISE OUT OF THE ORDERS OF THE DEPARTMENTAL AUTHORITIES, IT CANNOT BE THE SUBJECT MATTER OF ADJUDICATION IN THE PRESENT APPEAL. ACCORDINGLY, WE DISMISS GROUND NO.4 RAISED BY THE DEPARTMENT. 21. IN GROUNDS NO.7 AND 8, THE REVENUE HAS CHALLENGED T HE DELETION OF ADDITION MADE BY THE ASSESSING OFFICER UNDER SEC TION 14A. 22. BRIEF FACTS ARE, IN THE COURSE OF ASSESSMENT PROCEED INGS, THE ASSESSING OFFICER NOTICING THAT THE ASSESSEE HAD IN VESTED IN SHARES WHICH COULD RESULT IN EARNING OF EXEMPT INCOME BY W AY OF DIVIDEND, PROCEEDED TO DISALLOW EXPENDITURE INCURRED FOR EARN ING EXEMPT INCOME BY INVOKING PROVISIONS OF SECTION 14A AND ULTIMATEL Y DISALLOWED AN AMOUNT OF RS. 17,56,850 TOWARDS INTEREST ATTRIBUTABLE TO UTILIZAT ION OF 28 M/S. PROGRESSIVE CONSTRUCTIONS LTD. LOANS FOR INVESTING IN SHARES. THE ASSESSEE CHALLEN GED THE DISALLOWANCE BEFORE THE LEARNED COMMISSIONER (APPEALS). 23. THE LEARNED COMMISSIONER (APPEALS), CONSIDERING THE FACT THAT THE ASSESSEE HAD NOT EARNED ANY EXEMPT INCOME IN THE RE LEVANT ASSESSMENT YEAR AND FURTHER ASSESSEE HAD SUFFICIENT INTEREST F REE FUNDS AVAILABLE WITH HIM TO MAKE THE INVESTMENT HELD THAT NO DISALL OWANCE UNDER SECTION 14A CAN BE MADE. ACCORDINGLY, HE DELETED TH E ADDITION. 24. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES A ND PERUSED THE MATERIAL AVAILABLE ON RECORD IN THE LIGHT OF TH E DECISIONS RELIED UPON. THE FACT THAT IN THE RELEVANT PREVIOUS YEAR, ASSESS EE HAS NOT EARNED ANY EXEMPT INCOME HAS NOT BEEN CONTROVERTED BY THE DEPA RTMENT. THEREFORE, IN THE ABSENCE OF ANY EXEMPT INCOME EARN ED BY THE ASSESSEE NO DISALLOWANCE UNDER SECTION 14A CAN BE MADE AS HE LD BY THE HONBLE ALLAHABAD HIGH COURT AND HONBLE GUJARAT HIGH COURT AS REFERRED TO BY THE LEARNED COMMISSIONER (APPEALS). MOREOVER, THE A SSESSEES CLAIM THAT IT HAS SUFFICIENT SURPLUS INTEREST FREE FUNDS TO MAKE INVESTMENT IN EXEMPT INCOME YIELDING ASSETS HAS ALSO NOT BEEN CON TROVERTED BY THE DEPARTMENT. THEREFORE, APPLYING THE RATIO LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN RELIANCE UTILITIES AND POWER LTD . [2009] 313 ITR 340 (BOM.), CIT V/S HDFC BANK LTD. [2014] 366 ITR 505 (BOM.) AND HONBLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LIMITED VS. CIT (2015) 378 ITR 33, WE HOLD THAT NO DISALLOWANCE IN TERMS OF SECTION 14A 29 M/S. PROGRESSIVE CONSTRUCTIONS LTD. CAN BE MADE. WE, THEREFORE, UPHOLD THE ORDER OF THE LEARNED COMMISSIONER (APPEALS) ON THIS ISSUE. THESE GROUNDS ARE DISMISSED. 25. IN THE RESULT, DEPARTMENTS APPEAL IS DISMISSED. C.O. NO.36/HYD./2015 BY ASSESSEE 26. THERE IS A DELAY OF 138 DAYS IN FILING THE CROS S OBJECTION. EXPLAINING THE REASON FOR DELAY, ASSESSEE HAS STATED THAT, DUE TO OVERSIGHT THE ASSESSEE OVERLOOKED THE CBDT CIRCULAR ON AMORTIZATI ON. HOWEVER, AFTER DUE CONSIDERATION OF FACTS AND MATERIALS ON RECORD, WE ARE NOT CONVINCED WITH THE EXPLANATION OF THE ASSESSEE. AS COULD BE S EEN, IN GROUND NO.(IV) OF ITS APPEAL, THE DEPARTMENT HAS SPECIFICALLY RAIS ED THE PLEA OF AMORTIZATION AS PER THE SUBJECT CBDT CIRCULAR. THER EFORE, IT CANNOT BE SAID THAT ASSESSEE LOST SIGHT OF THE CBDT CIRCULAR. IN VIEW OF THE AFORESAID, THE ASSESSEE HAVING FAILED TO EXPLAIN TH E DELAY SATISFACTORILY, WE DECLINE TO CONDONE THE DELAY IN FILING THE CROSS OBJECTION. THE CROSS OBJECTION IS, THEREFORE, DISMISSED. 27. TO SUM UP, REVENUES APPEAL AND ASSESSEES C .O. ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2017. SD/- SD/- D/- D. MANMOHAN VICE PRESIDENT SD/ - J. SUDHAKAR REDDY ACCOUNTNAT MEMBER SD/- - SAKTIJIT DEY JUDICIAL MEMBER HYDERABAD, DATED: 14 TH FEBRUARY, 2017. VBP/- 30 M/S. PROGRESSIVE CONSTRUCTIONS LTD. COPY OF THE ORDER FORWARDED TO : (1) M/S. PROGRESSIVE CONSTRUCTIONS LTD., 7 TH FLOOR, RAGHAVA NORTH BLOCK, RAGHAVA RATNA TOWERS, CHIRAG ALI LANE, HYDERABAD. (2) THE ACIT, CIRCLE-16(2), AAYAKAR BHAVAN, BASHEERBAGH , HYDERABAD. (3) THE CIT(A)-V, HYDERABAD. (4) THE CIT-IV, HYDERABAD. (5) THE DR, ITAT, A BENCH, HYDERABAD. (6) GUARD FILE. TRUE COPY BY ORDER (ASSTT. REGISTRAR) ITAT,HYDERABAD