Income tax Officer, V. M/s. Ashoka Highways (Durg) Limited, Nashik

ITA 156/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5507 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / ITA NO.156/PUN/17 / ASSESSMENT YEAR : 2013-14 ITO, WARD-1(1), NASHIK VS. M/S. ASHOKA HIGHWAYS (DURG) LIMITED, S.NO.861, ASHOKA HOUSE, ASHOKA MARG, WADALA, NASHIK 422 011 PAN : AAGCA2214H . / ITA NO.157/PUN/17 / ASSESSMENT YEAR : 2013-14 ITO, WARD-1(1), NASHIK VS. M/S. ASHOKA HIGHWAYS (BHANDARA) LIMITED, S.NO.861, ASHOKA HOUSE, ASHOKA MARG, WADALA, NASHIK 422 011 PAN : AAGCA2213A (APPELLANT) (RESPONDENT) / ORDER PER BENCH : THESE APPEALS BY THE REVENUE ARISE OUT OF TWO SEPARATE ORDERS, BOTH DATED 18-11-2016, IN RESPECT OF TWO DIFFEREN T BUT APPELLANT BY SHRI S.B. PRASAD RESPONDENT BY NONE (WRITTEN SUBMISSIONS) DATE OF HEARING 04-02-2019 DATE OF PRONOUNCEMENT 05-02-2019 ITA NOS. 156 & 157/PUN/207 M/S. ASHOKA HIGHWAYS (DURG) LIMITED M/S. ASHOKA HIGHWAYS (BHANDARA) LIMITED 2 CONNECTED ASSESSEES FOR THE ASSESSMENT YEAR 2013-14. SINCE COMMON ISSUE IS RAISED IN THESE APPEALS, WE ARE, THEREFOR E, PROCEEDING TO DISPOSE THEM OFF BY THIS CONSOLIDATED ORDER FO R THE SAKE OF CONVENIENCE. 2. THE ONLY ISSUE IN THESE APPEALS IS AGAINST GRANTING OF DEPRECIATION ON THE ASSET RIGHT TO COLLECT TOLL. 3. BRIEFLY STATED, THE FACTS OF THE CASE, ARE THAT THE ASSESS EE, NAMELY, M/S. ASHOKA HIGHWAYS (DURG) LIMITED CLAIMED DEPRECIATION OF RS.138.53 CRORE @ 25% ON THE ASSET TERMED AS LICENSE TO COLLECT TOLL, BEING AN INTANGIBLE ASSET AMOUNTING TO RS.554.12 CRORE. THE ASSESSING OFFICER HELD THE ASSE SSEE TO BE DISENTITLED TO SUCH DEPRECIATION. HE TOOK NOTE OF THE TRIBUNAL ORDER PASSED IN THE CASE OF M/S. ASHOKA BRIDGEWA YS, NASHIK FOR THE A.Y. 2007-08 AND M/S. ASHOKA DSC KATNI BYPASS, NASHIK FOR THE A.Y. 2008-09 IN WHICH SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR. HE, HOWEVER, DID NOT FOLLOW THE SAME ON THE PREMISE THAT IT WAS SUB JUDICE BEFORE THE HONBLE BOMBAY HIGH COURT. THE LD. CIT(A) GRANTED THE BENEFIT OF DEPRECIATION BY RELYING ON CERTAIN TRIBUNAL ORDERS IN THE CASE OF ASSESSEES SISTER CO NCERN, ITA NOS. 156 & 157/PUN/207 M/S. ASHOKA HIGHWAYS (DURG) LIMITED M/S. ASHOKA HIGHWAYS (BHANDARA) LIMITED 3 AGAINST WHICH THE REVENUE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 4. THE FACTS OF THE OTHER ASSESSEE NAMELY, M/S. ASHOKA HIGHWAYS (BHANDARA) LIMITED ARE MUTATIS MUTANDIS SIMILAR EXCEPT FOR THE FACT THAT THE CLAIM OF DEPRECIATION OF RS.82,45,42,988/- WAS MADE, WHICH WAS DENIED BY THE A O, BUT ALLOWED BY THE LD. CIT(A). 5. BEFORE US, THERE IS NO APPEARANCE FROM THE SIDE OF THE RESPONDENT-ASSESSEE. HOWEVER, HEARING THE LD. DR, CONSIDERING THE WRITTEN SUBMISSIONS AND THE FACTUAL MATRIX OF THE CASE, WE PROCEED TO ADJUDICATE THE APPEALS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 6. IT IS OBSERVED THAT THE LD. CIT(A) ALLOWED THE BENEFIT OF DEPRECIATION @25% ON THE INTANGIBLE ASSET DESIGNATED BY THE ASSESSEE AS RIGHT TO COLLECT TOLL BY RELYING ON CERTAIN TRIBUNAL ORDERS PASSED IN THE CASE OF ASSESSEES SISTER C ONCERN. IT IS FURTHER OBSERVED THAT SIMILAR VIEW HAS BEEN TAKEN BY THE SPECIAL BENCH OF THE TRIBUNAL IN ACIT VS. PROGRESSIVE CONSTRUCTION LIMITED (2018) 92 TAXMANN.COM 104 (HYDERABAD-TRIBUNAL (SB). THE LD. DR, EXCEPT FOR RELYING ON ITA NOS. 156 & 157/PUN/207 M/S. ASHOKA HIGHWAYS (DURG) LIMITED M/S. ASHOKA HIGHWAYS (BHANDARA) LIMITED 4 THE ORDER OF THE AO, COULD NOT PLACE ANY MATERIAL ON RECOR D TO DEMONSTRATE THAT THE ORDER PASSED BY THE TRIBUNAL IN THE C ASE OF THE ASSESSEES SISTER CONCERN HAS BEEN REVERSED OR MODIFIED BY THE HONBLE BOMBAY HIGH COURT IN ANY MANNER. RESPECTFULLY FOLLOWING THE PRECEDENT, WE UPHOLD THE IMPUGNED ORDERS. 7. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05TH FEBRUARY, 2019. SD/- SD/- (VIKAS AWASTHY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESID ENT PUNE; DATED : 05 TH FEBRUARY, 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-1, NASHIK 4. 5. THE PR.CIT-1, NASHIK , , / DR A, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NOS. 156 & 157/PUN/207 M/S. ASHOKA HIGHWAYS (DURG) LIMITED M/S. ASHOKA HIGHWAYS (BHANDARA) LIMITED 5 DATE 1. DRAFT DICTATED ON 04-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 04-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *