Assistant Commissioner of Income tax, V. M/s. Ashoka DSC Katni By-Pass Road Pvt.Ltd, Nashik

ITA 212/PUN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0269 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 27-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 2 12 /P U N/201 7 / ASSESSMENT YEAR : 20 1 3 - 1 4 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK . / APPELLANT VS. M/S. ASHOKA DSC KATNI BY - PASS ROAD PVT. LTD., ASHOKA MARG, WADALA, NASHIK 422101 . / RESPONDENT PAN: AAECA4746J / APPELLANT BY : SHRI PRASHANT GUDEKAR / RESPONDENT BY : NONE / DATE OF HEARING : 0 4 . 1 2 .201 8 / DATE OF PRONOUNCEMENT: 11 . 1 2 .201 8 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY REVENUE IS AGAINST ORDER OF CIT (A) - 1 , NASHIK , DATED 2 3 . 1 1 .2016 RELATING TO ASSESSMENT YEAR 20 1 3 - 14 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE A CT) . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - ITA NO. 212 /P U N/20 1 7 ASHOKA DSC KATNI BY - PASS ROAD PVT. LTD. 2 1.1 WHETHER ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) HAS JUSTIFIED IN ALLOWING THE DEPRECIATION @ 25% OF RS.4,90,43,230/ - AS CLAIMED BY THE ASSESSEE ON LICENSE TO COLLECT TOLL. 1.2 WHETHER ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW WHETHER THE LD CIT(A) WAS JUSTIFIED IN HOLDING THAT ASSESSEE WAS ELIGIBLE TO CLAIM DEPRECIATION ON LICENSE TO COLLECT TOLL CONSIDERING IT AS AN INTANGIBLE ASSET IN TERMS OF SECTION 32(1)(II) OF THE ACT. 2) THE ORDER OF CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. HOWEVER, FIND THAT T HE ISSUE RAISED IN PRESENT APPEAL STANDS COVERED BY THE ORDERS OF TRIBUNAL IN EARLIER YEARS, EVEN IN THE STATEMENT OF FACTS IT IS MENTIONED THAT THE CIT(A) HAS RELIED ON EARLIER DECISIONS OF TRIBUNAL IN THE CASE OF ASSESSEE ITSELF RELATING TO ASSESSMENT YE ARS 2006 - 07 AND 2007 - 08. HENCE, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. THE LIMITED ISSUE WHICH IS ARISING IN THE PRESENT APPEAL RAISED BY REVENUE AGAINST THE ORDER OF CIT(A) IN AL LOWING DEPRECIATION @ 25% ON LICENSE TO COLLECT TOLL. THE ASSESSING OFFICER HAD DENIED THE SAID DEPRECIATION TO THE ASSESSEE. HOWEVER, THE CIT(A) HELD THE ASSESSEE TO BE ELIGIBLE TO CLAIM DEPRECIATION CONSIDERING THE SAME TO BE AN INTANGIBLE ASSET IN T ERMS OF SECTION 32(1)(II) OF THE ACT. THE RELEVANT FINDINGS OF CIT(A) ARE IN PARA 4.3 WHICH READ AS UNDER: - 4.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, THE ASSESSMENT ORDER AND THE RIVAL SUBMISSIONS. IT IS UNDISPUTED THAT THE APPELLANT HAS GO T THE RIGHT TO COLLECT TOLL FOR A SPECIFIED PERIOD WHICH IS AUTHORIZED BY GOVERNMENT OF MAHARASHTRA, PUBLIC WORKS DIVISION, DIST. SOLAPUR. THIS RIGHT TO COLLECT TOLL WAS CONSIDERED AS AN ASSET BY THE APPELLANT AS THE SAME WAS ACQUIRED AS PER THE GOVER NMENTS ORDER OF BOT. THIS RIGHT OF THE APPELLANT IS A VALUABLE RIGHT HAVING COMMERCIAL VALUE. THE APPELLANT RAISED LOANS BY ASSIGNING THIS 'RIGHT TO COLLECT TOLL' UNDER THE BOT SCHEME. ON THESE FACTS, IT CAN BE SAID THAT THE ITA NO. 212 /P U N/20 1 7 ASHOKA DSC KATNI BY - PASS ROAD PVT. LTD. 3 'RIGHT TO COLLECT TOLL' IS AN I NTANGIBLE ASSET COVERED BY THE INCOME TAX RULES, 1962. THE SUBMISSIONS AND ARGUMENTS MADE ON BEHALF OF THE APPELLANT HAVE MERIT AND, THEREFORE, ARE ACCEPTED. CONSEQUENTLY, THE APPELLANT IS HELD TO BE ELIGIBLE FOR DEPRECIATION ON THIS ASSET. THIS VIEW IS SU PPORTED BY THE DECISION OF THE HON'BLE TRIBUNAL IN THE CASE OF SISTER CONCERN OF THE APPELLANT VIZ. ASHOKA INFO PVT. LTD. IN I.T.A. NO.44/PN/07 DATED 31/12/2008 - PUNE BENCH, ASHOKA BRIDGEWAYS IN I.T.A. NO. 686/PN/2012 A.Y. 2007 - 08 DATED 29/04/2013 - PUNE BENCH, AND ANOTHER DECISION OF THE HON'BLE TRIBUNAL IN THE CASE OF RELIANCE PORTS AND TERMINALS LTD. IN I.T.A. NOS.1743 TO 45/MUM/07 DATED 26/11/2007 - MUMBAI BENCH. ON IDENTICAL FACTS IN THE CASE OF APPELLANT'S SISTER CONCERN NAMELY ASHOKA BRIDGEWAYS IN I .T.A NO. NSK/CIT(A) - L/49/2014 - 15 DATED 24/07/2015, I HAVE HELD THAT 'RIGHT TO C OLLECT TOLL' IS AN INTANGIBLE ASSET, ELIGIBLE FOR DEPRECIATION @ 25 %. IN VIEW OF THE ABOVE FINDINGS AND RESPECTFULLY FOLLOWING THE ORDERS OF THE HON'BLE TRIBUNAL (SUPRA) ON THIS ISSUE AND TO MAINTAIN CONSISTENCY IN THE JUDICIAL ORDERS, THEREFORE, IT IS HELD THAT THE 'RIGHT TO COLLECT TOLL' IS AN INTANGIBLE ASSET AND THE SAME IS ELIGIBLE FOR DEPRECIATION @ 25 % AS PER THE CLAIM MADE BY THE APPELLANT. THE AO IS DIRECTED ACCORDINGLY TO ALLOW DEPRECIATION OF 4,90,43,230/ - . THIS GROUND OF APPEAL IS ALLOWED . 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS FAILED TO BRING TO OUR NOTICE ANY DECISION OF THE HONBLE HIGH COURT REVERSING THE VIEW OF TRIBUNAL BUT HAS POINTE D OUT THAT THE APPEAL AGAINST GROUP CONCERN IS PENDING BEFORE THE HONBLE HIGH COURT. SINCE THE ISSUE ADMITTEDLY, STANDS COVERED BY THE ORDER OF TRIBUNAL AND FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF CIT(A). THE GROUNDS OF APPEAL RAI SED BY REVENUE ARE THUS, DISMISSED. 6 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 11 TH DAY OF DECEM B ER , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 11 TH DECEM BER , 201 8 . GCVSR ITA NO. 212 /P U N/20 1 7 ASHOKA DSC KATNI BY - PASS ROAD PVT. LTD. 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 1 , NASHIK ; 4. THE PR. CIT - 1 , NASHIK ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE