Addl. CIT, Noida V. M/s. Noida Toll Plaza, Noida

ITA 1165/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4053 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 04-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G MEENA
• Assessee Lawyers: ARVIND DUBEY
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH B BB B : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI BEFORE SHRI C.L.SETHI, JM AND SHRI K. K.K. K.G.BANSAL G.BANSAL G.BANSAL G.BANSAL, AM , AM , AM , AM ITA NO. ITA NO. ITA NO. ITA NO.1165/DEL/2011 1165/DEL/2011 1165/DEL/2011 1165/DEL/2011 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2004 2004 2004 2004- -- -05 0505 05 ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF ASSTT.COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE, NOIDA. CIRCLE, NOIDA. CIRCLE, NOIDA. CIRCLE, NOIDA. VS. VS. VS. VS. M/S NOIDA TOLL PLAZA, M/S NOIDA TOLL PLAZA, M/S NOIDA TOLL PLAZA, M/S NOIDA TOLL PLAZA, DND FLYOVER, DND FLYOVER, DND FLYOVER, DND FLYOVER, OPPOSITE SECTOR OPPOSITE SECTOR OPPOSITE SECTOR OPPOSITE SECTOR- -- -15A, 15A, 15A, 15A, NOIDA. NOIDA. NOIDA. NOIDA. PAN NO. PAN NO. PAN NO. PAN NO.AAACN3498A. AAACN3498A. AAACN3498A. AAACN3498A. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.MEENA, CIT-DR. RESPONDENT BY : SHRI ARVIND DUBEY, CA. ORDER ORDER ORDER ORDER PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI PER C.L.SETHI, J , J, J , JM : M : M : M : IN THIS APPEAL FILED BY THE REVENUE AGAINST THE OR DER DATED 22.11.2010 PASSED BY LEARNED CIT(A), THE REVENUE HA S TAKEN THE FOLLOWING GROUNDS:- 1. LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, IN ALLOWING DEPRECIATION ON TOLL ROAD/FLYOVER WITHOUT CONSIDERING DECISION OF SUPREM E COURT IN THE CASE OF INDORE MUNICIPAL CORPORATION (SC) 24 7 ITR 803, WHERE IT IS HELD BY THE APEX COURT THAT THE EXPENDITURE INCURRED BY THE ASSESSEE TOWARDS CONSTR UCTION OF THE METAL ROADS ON TRENCHING GROUND WAS NOT A RE VENUE EXPENDITURE. 2. LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE BY ALLOWING THE DEPRECIAT ION OF RS.19,14,43,827/- ON DND TOLL ROAD/FLYOVER WHICH IS NOT A DEPRECIABLE ASSET IN THE HANDS OF THE ASSESSEE RATH ER IT IS A PRODUCT OF THE BUSINESS OF THE ASSESSEE. 3. LD.CIT(A) HAS ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE BY ALLOWING THE RELIEF OF RS.19,14,43,827/- TO THE ASSESSEE ON ACCOUNT OF DEPRECIATION ON ROADS AND BRIDGE, INSTEAD OF DISALL OWING IT AS THE ASSESSEE IS NOT OWNER OF THE ASSETS. ITA-1165/DEL/2011 2 4. HENCE ORDER OF LD.CIT(A) DESERVES TO BE SET ASID E AND ORDER OF THE AO BE RESTORED. 2. THE ISSUE INVOLVED IN THIS APPEAL IS WHETHER CIT (A) HAS ERRED IN LAW IN ALLOWING DEPRECIATION ON TOLL ROAD/FLYOVER. 3. IN THE RETURN OF INCOME, THE ASSESSEE CLAIMED DE PRECIATION ON THE TOLL ROAD/BRIDGE AMOUNTING TO `19,14,43,827/- U NDER THE BLOCK BUILDING AT 10%. THE AO HAS DISALLOWED THE AFORE SAID ASSESSEES CLAIM OF DEPRECIATION OF `19,14,43,827/- ON TOLL RO AD/BRIDGE. 4. ON AN APPEAL, LEARNED CIT(A) HAS ALLOWED THE ASS ESSEES CLAIM BY OBSERVING THAT THE SIMILAR ISSUE WAS INVOLVED IN AY 2002-03 AND 2003- 04 WHERE THE LEARNED CIT(A) HAS ALLOWED THE ISSUE I N FAVOUR OF THE ASSESSEE, AND THE SECOND APPEAL FILED BY THE DEPART MENT BEFORE THE TRIBUNAL WAS DISMISSED BY THE TRIBUNAL BY UPHOLDING THE CIT(A)S ORDER IN ALLOWING THE ASSESSEES CLAIM OF DEPRECIATION VI DE ORDER DATED 19.12.2008 IN ITA NO.3211/DEL/2006. THE LEARNED CI T(A) REPRODUCED THE RELEVANT PORTION OF THE TRIBUNALS ORDER IN PAR A 3.4 OF HIS ORDER. THE LEARNED CIT(A) THUS FOLLOWED THE DECISION OF TH E TRIBUNAL WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. 5. IN THE COURSE OF HEARING OF THIS APPEAL, THE POS ITION THAT THIS ISSUE IS COVERED BY THE TRIBUNALS ORDER PASSED IN AY 2002-03 & 2003- 04 HAS NOT BEEN DISPUTED BY BOTH THE PARTIES. 6. THE ITAT DELHI BENCH H, NEW DELHI IN ITA NO.32 11/DEL/2006 FOR THE AY 2003-04 AND ITA NO.1983/DEL/2006 FOR THE AY 2002-03 VIDE ITS COMMON ORDER DATED 19.12.2008 HAS HELD AS UNDER:- 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND GONE THROUGH THE RECORDS CAREFULLY. THE ONLY OBJEC TION OF ITA-1165/DEL/2011 3 THE ASSESSING OFFICER FOR DENYING THE DEPRECIATION TO THE ASSESSEE IS THAT ROAD IN ISOLATION DOES NOT CONSTIT UTE BUILDING. THIS ROAD IS NOT WITHIN THE FACTORY PREM ISES WHICH CAN BE CONSIDERED AS A PART OF THE PLANT OR BUILDIN G. WE FIND THAT EXPRESSION BUILDING HAS BEEN GIVEN AN E XTENDED MEANING IN THE APPENDIX-I OF IT RULES. NOW THE BUI LDING INCLUDES ROADS, BRIDGES, CULVERTS, WELL AND TUBE WE LLS. THUS, THE JUDGMENT RELIED UPON BY THE ASSESSING OFF ICER IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. T HERE IS A CHANGE IN THE POSITION OF LAW. THE LEARNED 1 ST APPELLATE AUTHORITY HAS CONSIDERED THIS ISSUE ELABORATELY IN THE FINDINGS EXTRACTED SUPRA, AND WE DO NOT FIND ANY ER ROR IN THIS FINDING. THEREFORE, BOTH THE APPEALS ARE DISM ISSED. 7. RESPECTFULLY FOLLOWING THE TRIBUNALS ORDER PASS ED IN AY 2002-03 & 2003-04, WE UPHOLD THE ORDER OF CIT(A) AND REJECT THE GROUND TAKEN BY THE DEPARTMENT. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 6 TH MAY, 2011. SD/- SD/- (K.G,BANSAL (K.G,BANSAL (K.G,BANSAL (K.G,BANSAL) )) ) (C.L.SETHI (C.L.SETHI (C.L.SETHI (C.L.SETHI) )) ) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 06.05.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR