WEST GUJARAT EXPRESSWAY LTD, MUMBAI V. ASST CIT 10(1), MUMBAI

ITA 6244/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92332 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 12-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMINDER
• Assessee Lawyers: D V LAKHANI
• Keywords: Capital asset; Business income; Depreciation; Business expenditure; Bonafide belief; Revised return; Revenue expenditure; Capital expenditure
• Section: 234B; 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G , MUMBAI BEFORE SHRI B.R. BASKARAN , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 5904/M/2012 ASSESSMENT YEAR: 2009 - 10 ACIT - 10(1), 455, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMB AI - 400020 VS. M/S. WEST GUJARAT EXPRESSWAY LTD., BLOCK G, THE IL & FS FINANCIAL CENTER, PLOT NO.22, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 PAN: AAACW5862D (APPELLANT) (RESPONDENT) ITA NO. 6244/M/2012 ASSESSMENT YEAR: 2009 - 10 M/S. WEST GUJARAT EXPRESSWAY LTD., THE IL & FS FINANCIAL CENTER, PLOT NO. C - 22, G BLOCK, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 PAN: AAACW5862D VS. ACIT - 10(1), 455, 4 TH FLOOR, AAYAKAR BHAVAN, M.K . ROAD, MUMBAI 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.V. LAKHANI, A.R. REVENUE BY : MS. PARMINDER, CIT D.R. DATE OF HEARING : 31 .0 3 .201 5 DATE OF PRONOUNCEMENT : 15.04. 2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED CROSS APPEALS ONE BY THE REVENUE AND THE OTHER BY THE ASSESSEE HAVE BEEN DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 2 TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 01 .06.2012 RELEVANT TO ASSESSMENT YEAR 2009 - 10 AND THE SAME ARE BEING DISPOSED OF WITH THIS COMMON ORDER. FIRST WE TAKE UP THE APPEAL OF THE REVENUE. ITA NO. 5904/M/2012 : 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADD ITION OF INTEREST INCOME OF RS. 1,34,59,582/ - UNDER THE HEAD ' INCOME FROM OTHER SOURCES' WITHOUT APPRECIATING THE FACT THAT INCOME IS NOT DERIVED FROM THE BUSINESS ACTIVITY OF THE ASSESSEE COMPANY. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DEPRECIATION ON ROAD OF RS.40, 12,50,880/ - WITHOUT APPRECIATING THE FACTS THAT THE TOLL ROAD DOES NOT FROM A PART OF SPECIFIED ASSETS AND THE ASSESSEE WAS NOT THE OWNER OF TOLL ROADS. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND, OR A LTER ANY GROUNDS OR ADD A NEW GROUND, WHICH MAY BE NECESSARY.' GROUND NO.1: 3. THE ISSUE RAISED VIDE GROUND NO.1 IS AS TO WHETHER THE INTEREST INCOME OF RS.1 , 34 , 59 , 582 / - IS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES OR AS BUSINESS INCOME OF THE ASSESSEE . THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) FOUND THAT THE INTEREST INCOME OF RS.1,34,59,582 / - DERIVED FROM BANK DEPOSITS HAD BEEN INCLUDED BY THE ASSESSEE INTO ITS BUSINESS INCOME. HE, HOWEVER, OBSERVED THAT SINCE THE SAI D INCOME WAS NOT DERIVED FROM BUSINESS ACTIVITY OF THE ASSESSEE COMPANY, HENCE THE SAME WAS TAXABLE UNDER THE HEAD INCOME FROM OTHER SOURCES. 4. IN THE FIRST APPEAL, THE LD. CIT(A) DIRECTED THAT THE INTEREST INCOME BE ASSESSED AS BUSINESS INCOME OBSER VING AS UNDER: ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 3 4. THE 4 TH GROUND OF APPEAL IS THAT THE A.O. ERRED IN TAXING THE INTEREST INCOME OF RS.1,34,59,582/ - UNDER THE HEAD INCOME FROM OTHER SOURCES INSTEAD OF TAXING THE SAME UNDER THE HEAD INCOME FORM BUSINESS AND PROFESSION. 4.1 I HAVE CONS IDERED THE FACTS OF THE CASE. THE A.O. HAS DISCUSSED THIS ISSUE IN PARA 7 OF THE ASSESSMENT ORDER. THIS ISSUE WAS ALSO THERE IN APPELLANT'S CASE IN A.Y.2007 - 08 WHEREIN THE UNDERSIGNED DECIDED THE ISSUE AS UNDER: '3.3. I HAVE CAREFULLY CONSIDERED THE FAC TS OF THE CASE. THE APPELLANT HAS EXPLAINED THAT IT STARTED EARNING THE BUSINESS RECEIPTS I.E. EARNING TOLL REVENUE FROM THE PORTION OF THE PROJECT COMPLETED AND TOTAL REVENUE RECEIVED WAS RS. 6.41 CRORES. OUT OF THIS AMOUNT, THE APPELLANT INVESTED FUNDS OF RS.6.1 6 CRORES INTO FIXED DEPOSITS AND EARNED INTEREST INCOME OF RS.5 ,59, 939/ - . IN THE FACTS AND CIRCUMSTANCES THE DECISION OF HON'BLE MUMBAI HIGH COURT IN THE CASE OF CIT VS. LOK HOLDINGS 308 ITR 356 WAS APPLICABLE. IN THAT CASE THE ASSESSEE WAS ENGAGED IN DEVELOPMENT OF PROPERTIES. ADVANCE FROM CUSTOMERS INTENDING TO PURCHASE FLATS WAS DEPOSITED WITH THE BANKS IN THE COURSE OF BUSINESS. THE INTEREST INCOME WAS HELD TO BE ASSESSABLE AS BUSINESS INCOME AND NOT AS INCOME FROM OTHER SOURCES. IN THE CASE UND ER CONSIDERATION ALSO THE BUSINESS RECEIPTS WERE DEPOSITED INTO BANK AND THEREFORE, FOLLOWING THE DECISION OF HON'BLE MUMBAI HIGH COURT IN THE CASE OF LOK HOLDINGS, THE INTEREST INCOME WAS ASSESSABLE AS BUSINESS INCOME. THE A.O. IS DIRECTED TO ASSESS THE S AME AS BUSINESS INCOME. THIS GROUND OF APPEAL IS ALLOWED.' THIS ISSUE WAS ALSO THERE IN A.Y.2008 - 09 WHEREIN BY FOLLOWING THE APPEAL ORDER OF A.Y.2007 - 08, THE UNDERSIGNED DIRECTED THE A.O. TO CONSIDER THE INTEREST INCOME UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. THE FACTS OF THE YEAR UNDER CONSIDERATION ARE SAME THAT THE APPELLANT HAD EARNED INTEREST INCOME OF RS.1,32,17,891/ - ON DEPLOYMENT OF BUSINESS RECEIPTS IN THE FIXED DEPOSITS AND HAD ALSO EARNED INTEREST OF RS.2,76,011/ - ON BANK GUARANTEE. F OLLOWING THE APPEAL ORDER OF EARLIER YEARS, THE A.O. IS DIRECTED TO ASSESS INTEREST INCOME UNDER THE HEAD INCOME FROM BUSINESS AND PROFESSION. THIS GROUND OF APPEAL IS ALLOWED . 4.1 AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE HAS COME IN APPEAL ON THIS ISSUE BEFORE US. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORDS. A PERUSAL OF THE ABOVE REPRODUCED FINDINGS OF THE LD. CIT(A) ON THIS ISSUE REVEALS THAT THE LD. CIT( A) HAS ALLOWED THE CLAIM OF THE ASSESSEE DIRECTING THAT THE INTEREST INCOME BE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 4 TREATED AS BUSINESS INCOME RELYING UPON HIS OWN FINDINGS GIVEN IN THE EA RLIER ASSESSMENT YEAR 2007 - 08 FOR WHICH HE HAD RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. LOK HOLDINGS 308 ITR 356 . THE LD. A.R. OF THE ASSESSEE HAS STRESSED THAT THE SAID FINDINGS OF THE LD. CIT(A) GIVEN IN RELATION TO ASSESSMENT YEAR 2007 - 08 HAVE BEEN FURTHER UPHELD BY THE TRIBUNAL VIDE ORDER DATED 27.02.13 PASSED IN ITA NO.1284/M/2011 & 14/M/2011. 6. WE HAVE PERUSED THE SAID ORDER DATED 27.02.1 3 (SUPRA) OF THE TRIBUNAL. THE RELEVANT ISSUE HAS BEEN TAKEN BY THE TRIBUNAL VIDE PARA 21 OF THE SAID ORDER. THE TRIBUNAL HAS ALLOWED THE CLAIM OF THE ASSESSEE IN VIEW OF T HE FINDINGS GIVEN WHILE ADJUDICATING THE ANOTHER ISSUE RELATING TO SOME OTHER INTEREST INCOME OF THE ASSESSEE, T HE CLAIM REGARDING TREATMENT OF WHICH AS BUSINESS INCOME WAS REJECTED BY THE LD. CIT(A). THE SAID ISSUE HAS BEEN DISCUSSED VIDE PARAS 2 TO 8 OF THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2007 - 08. THE TRIBUNAL HAS OBSERVED THAT SINCE IT WAS A MATTER OF SHORT TERM DEPOSIT TEMPORARILY MADE OUT OF BORROWED FUNDS PENDING UTILIZATION OF THE SAME, HENCE THE ISSUE WAS COVERED WITH THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. JHUNJ HUNWALA VANASPATI LTD. 11 DTR 21 AND FURTHER WITH THAT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. VARUN SHIPPING COM PANY LTD 334 ITR 263 ( HC). T HE TRIBUNAL, THEREFORE, ALLOWED THE C LAIM OF THE ASSESSEE FOR TREATMENT OF THE INCOME AS BUSINESS INCOME. 7. THE LD. AR OF THE ASSESSEE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS ENTERED INTO AN AGREEMENT DATED 22.3.2005 WITH NATIONAL HIGHWAYS AUTHORITY OF INDIA ( IN SHORT NHAI) VIDE WHICH THE ASSESSEE HAS BEEN GRANTED RIGHTS/LICENSE TO COLLECT TOLL FOR THE PERIOD OF 20 YEARS FOR UP GRADATION, OPERATION, MAINTENANCE AND IMPLEMENTATION OF JETPUR - RAJKOT ROAD PROJECT. THE SAID PROJECT HAS BEEN ASSIGNED TO THE ASSESSEE AS A CONCESSIONAIRE ON ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 5 B UILT - OPERATE - TRANSFER (BOT) BASIS. THE LD. AR OF THE ASSESSEE HAS FURTHER BROUGHT OUR ATTENTION TO THE C OMMON LOAN AGREEMENT DATED 20 TH JUNE, 2005, ENTERED BETWEEN THE ASSESSEE AND THE LENDER BANKS NAMELY 1. PUNJAB NATIONAL BANK, 2. CORPORATION BANK, 3 . INDIAN OVERSEAS BANK, 4. ORIENTAL BANK OF COMMERCE, 5. UNION BANK OF INDIA, 6. UNITED BANK OF INDIA, 7. INDIAN BANK AND 8. UCO BANK , VIDE WHICH THE ABOVE STATED BANKS HAVE AGREED TO PROVI DE LOAN TO THE ASSESSEE TO PART FINANCE THE SAID PROJECT. A S PER CLAUSE 7.13 OF THE SAID LOAN AGREEMENT, IT HAS BEEN AGREED THAT OUT OF THE NET REVENUE GENERATIONS OF THE SAID PROJECT, THE BORROWER (ASSESSEE) WOULD OPEN WITH THE LEAD BANK A DEBIT SERVICE RESERVE ACCOUNT EQUIVALENT TO 12 MONTHS OF DEBT SERVICE OR RS. 18 00 LAKH. THE LD. AR OF THE ASSESSEE HAS FURTHER RELIED UPON THE COPY OF THE LETTER DATED 31.12.2011 OF THE RELATIONSHIP MANAGER OF THE PUNJAB NATIONAL BANK CERTIFYING THAT ALL THE ORIGINAL FD RECEIPTS WERE PHYSICALLY LYING WITH THE SAID BANK (PNB) AND THE RE WAS LIEN ON THE SAME UNDER THE DEBT SERVICE RESERVE ACCOUNT. THE LD. AR HAS FURTHER SUBMITTED THAT INTEREST INCOME FROM THE FDRS KEPT WITH THE BANK AS REQUIRED UNDER THE C OMMON LOAN AGREEMENT UPON WHICH THE BANK HAS LIEN HAS BEEN ACCEPTED AS BUSINE SS INCOME IN THE EARLIER ASSESSMENT YEARS 2007 - 08 & 2008 - 09 BY THE LD. CIT(A) WHICH FINDINGS HAVE BEEN FURTHER UPHELD BY THE TRIBUNAL VIDE ORDERS DATED 27.2.2013 FOR A.Y. 2007 - 08(SUPRA) AND ORDER DATED 5.4.2013 FOR A.Y. 2008 - 09. FROM THE ABOVE SUBMISSION S OF THE ASSESSEE, IT IS APPARENT ON THE RECORD THAT THE INTEREST INCOME HAS BEEN EARNED BY THE ASSESSEE ON THE SECURITY DEPOSITS WITH THE BANK AS PER THE COMMON LOAN AGREEMENT AS DISCUSSED ABOVE . T HE SAID INTEREST INCOME HAD BEEN EARNED BY THE ASSESSEE O UT OF BUSINESS COMPULSIONS OF DEPOSIT S IN THE DEBIT SERVICE RESERVE ACCOUNT , HENCE THE SAID INTEREST INCOME IS LINKED TO THE BUSINESS ACTIVITIES OF THE ASSESSEE. THE ISSUE IS COVERED WITH THE DECISIONS OF THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE FOR EARLIER ASSESSMENT YEARS. HENCE, THE INTEREST INCOME OF THE ASSESSEE IS ORDERED TO BE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 6 ASSESSED AS BUSINESS INCOME. GROUND NO.1 OF THE REVENUES APPEAL IS THEREFORE DISMISSED. GROUND NO.2 8. GROUND NO.2 IS RELATING TO THE CLAIM OF DEPRECIATION ON ROAD AMOU NTING TO RS.40,12,50,880/ - . THE A O NOTICED THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON TOLL ROADS AMOUNTING TO RS. RS.40,12,50,880/ - . WHEN ASKED TO EXPLAIN IN THIS RESPECT BY THE AO, THE ASSESSEE MADE ITS SUBMISSIONS VIDE LETTER DATED 16.11.11 WHICH HA VE BEEN SUMMARIZED BY THE AO IN HIS ORDER AS UNDER: (I) THE ASSESSEE COMPANY HAS ENTERED INTO AN AGREEMENT DATED 22.03.2005 WITH THE NATIONAL HIGHWAYS AUTHORITY OF INDIA LIMITED (NH AI) AND WAS GRANTED CONCESSION UNDER THE SAID AGREEMENT FOR A PERIOD OF 20 YEARS COMMENCING FROM 22.09.2005. THE TOTAL COST OF THE INFRASTRUCTURE FACILITY IS RS. 274.52 CRORES. (II) AT THE END OF THE CONCESSION PERIOD, THE ASSESSEE COMPANY WILL HAVE TO HAND OVER THE PROJECT FACILITY TO NHAI. (III) THE PROJECT IS AN INFRASTRUCT URE ELIGIBLE FOR DEDUCTION U/S 80 - IA OF THE ACT AND THE INCOME FROM THE SAID PROJECT IS TOTALLY EXEMPT FROM TAX FOR A PERIOD OF 10 YEARS. (IV) THE TOTAL COST OF CONSTRUCTION OF THE PROJECT FACILITY IS CAPITALIZED IN THE BOOKS OF ACCOUNTS AS FIXED ASSETS AN D THE ASSESSEE COMPANY IS ENTITLED TO DEPRECIATION ON THE SAID COST. (V) THE ASSESSEE COMPANY HAS UNDERTAKEN A RISK BY ENTERING INTO AN AGREEMENT WITH NHAI AND HAS AGREED TO EXPLOIT THE PROJECT BY SPENDING SUBSTANTIAL AMOUNT FOR THE PURPOSE OF SETTING IT U P. (VI) THE FACILITY IS OWNED, MANAGED, CONTROLLED, OPERATED AND FINANCED BY THE ASSESSEE COMPANY AT ITS OWN RISK AND REWARD. (VII) TO CLAIM DEPRECIATION, THE CONDITIONS REQUIRED TO BE FULFILLED ARE THAT IT SHOULD BE A CAPITAL ASSET, OWNED BY THE ASSESSEE AND USED FOR THE PURPOSE OF BUSINESS. THE ASSESSEE COMPANY HAS FULFILLED ALL THE SAID CONDITIONS. THE SAID ASSET IS TREATED AS BUILDINGS AND DEPRECIATION IS CLAIMED AT THE PRESCRIBED RATE. (VIII) WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, THE ASSESSEE COM PANY HAS ALSO LODGED OR AN ALTERNATE CLAIM THAT DEPRECIATION SHOULD BE ALLOWED IN RESPECT OF THE TOLL ROADS BY TREATING THE SAID PROJECT FACILITY AS 'PLANT AND MACHINERY', CONTENDING THAT THE TOLL ROAD S CAN ALSO BE CLASSIFIED AS LAND FOR THE PURPOSE OF THE ACT. 9. THE AO, HOWEVER, DID NOT AGREE WITH THE ABOVE SUBMISSIONS OF THE ASSESSEE. HE HELD THAT THE OWNERSHIP OF THE ROAD HAD BEEN VESTED WITH THE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 7 GOVERNMENT OF IN DIA/NHAI AND THE SAME WAS NEVER TRANSFERRED TO THE ASSESSEE. THUS, THE ASSESSEE COMPANY H AD NO OWNERSHIP RIGHTS IN THE SAID ROAD AND HENCE WAS NOT ENTITLED TO CLAIM DEPRECIATION ON THE SAID ROAD. WHILE RELYING UPON SECTION 32 OF THE ACT, HE HELD THAT TO CLAIM DEPRECIATION , THE ASSET SHOULD BE OWNED BY THE ASSESSEE. HE FURTHER OBSERVED THAT T HE TOLL ROADS DID NOT FORM PART OF THE SPECIFIED ASSETS COVERED BY APPENDIX - 1 AND RULE 5 OF THE I.T. RULES . HE THEREFORE DENIED THE CLAIM OF DEPRECIATION ON THE TOLL ROAD. THE AO ALSO REJECTED THE ALTERNATE CLAIM OF THE ASSESSEE THAT THE TOLL ROADS BE TR EATED AS PLANT AND MACHINERY. HE, HOWEVER, OBSERVED THAT SINCE IT WAS A FACT THAT THE ASSESSEE COMPANY HAD INCURRED HUGE EXPENDITURE ON THE SAID ROAD WHICH OTHERWISE COULD NOT BE TREATED AS REVENUES EXPENDITURE AS THE SAME HAD RESULTED INTO PROVIDING END URING BENEFIT TO THE ASSESSEE COMPANY, H ENCE, THE SAID AMOUNT WOULD BE ELIGIBLE FOR AMORTIZATION FOR THE PERIOD OF THE CONCESSION AGREEMENT AS IT WAS ALLOWED IN A.Y. 2007 - 08 AND 2008 - 09 ALSO . 10. IN APPEAL, THE LD. CIT(A) ALLOWED THE CLAIM OF DEPRECIATI ON ON TOLL ROAD OBSERVING AS UNDER: 6.1 I HAVE CONSIDERED THE FACTS OF THE CASE. THIS ISSUE WAS ALSO THERE IN A.Y. 2007 - 08 AND 2008 - 09. IN THE APPEAL ORDERS, THE UNDERSIGNED HELD THAT THE APPELLANT WAS ENTITLED FOR DEPRECIATION ON TOLL ROAD. THE UNDER SIGNED ALSO HELD THAT THE DEPRECIATION ALLOWABLE WAS AT THE RATE OF CONSIDERING THE TOLL ROAD AS PART OF BUILDING. THE APPELLANTS CLAIM OF ALLOWING DEPRECIATION CONSIDERING THE TOLL ROAD AS PART OF PLANT & MACHINERY WAS REJECTED. FOLLOWING THE APPEAL OR DER OF EARLIER YEARS, THE A.O. IS DIRECTED TO ALLOW DEPRECIATION ON TOLL ROAD. THE A.O. IS DIRECTED TO ALLOW DEPRECIATION ON TOLL ROAD AT THE RATE PRESCRIBED FOR THE BLOCK OF ASSET BUILDING. THE GROUND NOS. 6,7,8 & 10 ARE ALLOWED AND GROUND NO. 9 IS DISM ISSED. 11. WE FIND THAT THE MATTER FOR THE EARLIER ASSESSMENT YEARS HAD TRAVELLED UP TO THE LEVEL OF THE TRIBUNAL. THE TRIBUNAL, IN ITS ORDER DATED 27.02.13, PASSED IN ITA NOS.1284 & 14/M/2011 (SUPRA), HAS DISCUSSED THE ISSUE VIDE PARA NOS.11 TO 19 OF T HE SAID DECISION. AFTER DISCUSSING THE RIVAL CONTENTIONS, THE TRIBUNAL, VIDE PARA 19 OF THE SAID ORDER, HAS CONCLUDED AS UNDER: ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 8 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND VARIOUS DECISIONS RELIED UPO N BY THE ASSESSEE AND VARIOUS CLAUSES OF THE CONCESSION AGREEMENT POINTED OUT BY THE LD. DR. AFTER CONSIDERING THE ENTIRE FACTS IN THE LIGHT OF THE JUDICIAL DECISIONS AND IN PARTICULAR CLAUSE 38.4 OF THE CONCESSION AGREEMENT WHICH PROVIDES AS UNDER: FOR THE PURPOSES OF CLAIMING TAX DEPRECIATION, THE PROPERTY REPRESENTING THE CAPITAL INVESTMENT MADE BY THE CONCESSIONAIRE SHALL BE DEEMED TO BE ACQUIRED AND OWNED BY THE CONCESSIONAIRE. IN THE LIGHT OF THIS SPECIFIC CLAUSE IN THE CONCESSION AGREEMENT, WE F IND THAT THE DECISIONS RELIED UPON BY THE ASSESSEE SQUARELY APPLY ON THE FACTS OF THE CASE. WE ACCORDINGLY DIRECT THE AO TO ALLOW DEPRECIATION ON TOLL ROAD BY TREATING IT AS PLANT AND MACHINERY. ACCORDINGLY, FINDINGS OF THE LD. CIT(A) ARE MODIFIED TO TH IS EXTENT. 12. FURTHER, IN RELATION TO THE IDENTICAL ISSUE FOR A.Y. 2008 - 09, THE TRIBUNAL , FOLLOWING THE ORDER DATED 27.02.13 (SUPRA), HAS ALLOWED THE CLAIM OF THE ASSESSEE IN THIS RESPECT VIDE ORDER DATED 21.03.13 PASSED IN ITA NO.6841 & 6796/M/2011. 13. EARLIER, THIS MATTER WAS HEARD ON 21.10.14 BY US. ON THE SAID DATE, I T WAS CONTENDED BY THE LD. AR THAT THE ISSUE WAS COVERED BY THE DECISIONS OF THE TRIBUNAL FOR EARLIER ASSESSMENT YEARS IN THE OWN CASE OF THE ASSESSEE AND FURTHER BY THAT OF VARIOUS HIGH COURTS E.G. M/S. NOIDA TOLL BRIDGE COMPANY LTD. PASSED IN ITA NO.316/2011 ( HONBLE ALLAHABAD HIGH COURT ) , IN THE CASE OF MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD. ( MUMBAI TRIBUNAL ) REPORTED AS 126 ITD 279 AND FURTHER IN THE CASE OF GU JARAT ROAD AND INFRASTRUCTURE COMPANY LTD. OF THE AHMEDABAD BENCH OF TRIBUNAL IN ITA NOS.1450 TO 1453/AHD/2008. HOWEVER, THEREAFTER WE CAME ACROSS THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT OF BOMBAY IN THE CASE OF NORTH KARNATAKA EXPRESSWAY LTD. VS. CIT IN ITA NO.499/2012 DECIDED ON 14.10.14. THE HONBLE BOMBAY HIGH COURT , IN THE SAID CASE , HAS CATEGORICALLY HELD THAT IN VIEW OF THE PROVISIONS OF NATIONAL HIGHWAY ACT, 1956 AND NATIONAL HIGHWAY AUTHORITIES OF INDIA ACT, ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 9 1988 , THE OWNERSHIP OF THE ROADS VESTS IN THE UNION OF INDIA AND FURTHER THAT THE ABOVE SAID ACTS ARE SPECIAL STATUTES . IT HAS BEEN OBSERVED BY THE HONBLE HIGH COURT THAT WHEN THE CONCEPT OF OWNERSHIP AND VESTING THEREIN IS OF ABSOLUTE NATURE THAT CANNOT BE SAID TO BE IN AN Y MANNER RESTRICTED OR CURTAILED BY A GENERAL DEFINITION OR UNDERSTANDING OF THE TERM OWNER AS APPEARING IN THE INCOME TAX ACT , 1961 AND UNDER SUCH CIRCUMSTANCES, THE ASSESSEES CLAIM THAT HE WAS THE OWNER OF THE TOLL ROAD WAS NOT ACCEPTABLE AND AS SUCH HE WAS NOT ENTITLED TO CLAIM THE DEPRECIATION ON THE SAID ROAD CLAIMING ITSELF TO BE OWNER OF THE ROAD. 13.1 IN VIEW OF THE ABOVE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT AND SINCE THE MATTER WAS PENDING DISPOSAL BEFORE THIS TRIBUNAL, HENCE THE C ASE WAS FIXED FOR REHEARING/CLARIFICATION AS THE MATTER COULD NOT HAVE BEEN DECIDED AS COVERED BY THE DECISIONS OF THE TRIBUNAL IN THE LIGHT OF THE ABOVE DECISION OF THE JURISDICTIONAL HONBLE BOMBAY HIGH COURT. 14. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORDS. THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE COMPANY HAS ENTERED INTO AN AGREEMENT DATED 22.03.2005 WITH THE NHAI AND HAS BEEN GRANTED CONCESSION FOR D ESIGN, ENGINEERING, FINANCING, PROCUREMENT, CONSTRUCTION, OPERATION AND MAINTENANCE OF TOLL ROAD ON BUILD, OPERATE AND TRANSFER (BOT) BASIS UNDER THE SAID AGREEMENT FOR A PERIOD OF 20 YEARS COMMENCING FROM SEPTEMBER 22, 2005. THE TOTAL COST OF THE INFRASTR UCTURE FACILITY HEREINAFTER REFERRED TO AS 'ROAD ASSET' OR 'PROJECT' OR 'TOLL ROAD' WAS RS. 2,74,52,75,143/ - . THE TOTAL COST OF CONSTRUCTION OF THE PROJECT FACILITY HAS BEEN CAPITALIZED IN THE BOOKS OF ACCOUNTS AS A FIXED ASSET AND THE ASSESSEE COMPANY HAS BEEN CLAIMING DEPRECIATION ON THE COST OF THE PROJECT FACILITY @ 15% TREATING THE SAME AS 'PLANT AND MACHINERY'. ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 10 THE PROJECT WAS AWARDED BY THE NHAI ON BUILD, OPERATE AND TRANSFER (BOT) BASIS WITH TOLL COLLECTION RIGHTS. THE ONLY SOURCE OF OPERATING INC OME TO THE ASSESS E E IS FROM THE TOLL FEES CHARGED FROM THE USERS OF THE PROJECT ROAD IN ACCORDANCE WITH THE RATES PRESCRIBED IN THE TOLL NOTIFICATION FROM TIME TO TIME. AS PER THE TERMS OF THE CONCESSION AGREEMENT , THE ROAD ASSET IS REQUIRED TO BE TRANSFE RRED TO THE NHAI IN A PROPER CONDITION AT THE END OF THE CONCESSION PERIOD. BY VIRTUE OF THE CONCESSION AGREEMENT, THE CONCESSIONAIRE SHALL HAVE THE EXCLUSIVE RIGHTS OVER THE PROJECT ASSET AND IS TO BE TREATED AS OWNER ; AND AS OWNER IS ELIGIBLE TO CLAIM T AX DEPRECIATION ON THE ROAD ASSET AND THAT THE SAID CONDITIONS HAVE BEEN BROUGHT OUT IN ARTICLE 38.4 OF THE CONCESSION AGREEMENT AS STATED BELOW: 'FOR THE PURPOSES OF CLAIMING TAX DEPRECIATION, THE PROPERTY REPRESENTING THE CAPITAL INVESTMENT MADE BY THE C ONCESSIONAIRE SHALL BE DEEMED TO BE ACQUIRED AND OWNED BY THE CONCESSIONAIRE'. 15. THE LD. A.R., STRONGLY RELYING UPON THE ABOVE REPRODUCED CLAUSE 38.4, HAS CONTENDED THAT THE EXPENDITURE INCURRED TO CONSTRUCT THE TOLL ROAD IS A CAPITAL EXPENDITURE AND T HE ASSESSEE IS THE OWNER IN TERMS OF THE ABOVE CLAUSE OF THE AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THE NHAI AND HAS ALL THE RIGHTS TO CLAIM THE TAX DEPRECIATION ON THE TOLL ROAD CONSTRUCTED AND CAPITALIZED IN THE BOOKS. HE HAS FURTHER CONTENDED THAT THE MATTER REFERRED TO THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NORTH KARNATAKA EXPRESSWAY LTD. VS. CIT (SUPRA) WAS ON THE QUESTION OF JUSTIFIABILITY OF REOPENING AND REASSESSMENT BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT AND THAT THE HIGH CO URT SUO MOTO DECIDED THE ISSUE RELATING TO THE ALLOWABILITY OF DEPRECIATION ON TOLL ROAD, HENCE THE SAME SHOULD NOT BE TAKEN AS BINDING PRECEDENT. THE LD. A.R. HAS FURTHER CONTENDED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NORTH KARNATAKA EXPRES SWAY LTD. VS. CIT (SUPRA) HAS LEFT OPEN THE ISSUE OF TREATING ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 11 THE TOLL ROAD PROJECT AS PLANT & MACHINERY OR OF THE CLAIM OF DEPRECIATION IN RELATION TO INVESTMENT MADE UNDER OTHER CATEGORIES OF ASSETS AS MENTIONED UNDER SECTION 32 OF THE ACT. IF THE ASS ESSEE IS NOT FOUND ENTITLED TO CLAIM THE OWNERSHIP OF THE ROAD, CLAIM OF THE ASSESSEE MAY ALSO BE CONSIDERED BEING INTANGIBLE ASSET AS THE ASSESSEE HAS BEEN GRANTED LICENSE TO COLLECT TOLL OVER THE ROAD FOR A PARTICULAR PERIOD AND THE SAID RIGHT/LICENSE GR ANTED TO THE ASSESSEE FALLS IN THE DEFINITION OF INTANGIBLE ASSET. 16. THE LD. D.R., ON THE OTHER HAND, HAS RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NORTH KARNATAKA EXPRESSWAY LTD. VS. CIT (SUPRA) . HE HAS FURTHER CONTE NDED THAT THE ASSESSEE HAD NOT PUT HIS CLAIM WITH REGARD TO THE TOLL ROAD TREATING HIS RIGHT AS INTANGIBLE ASSET AND UNDER SUCH CIRCUMSTANCES, HE IS ESTOPPED FROM CLAIMING SUCH A RIGHT AT THIS STAGE. THE LD. D.R. HAS ALSO RELIED UPON THE CIRCULAR NO. 09/20 14 OF THE CBDT CONTENDING THAT THE CBDT HAS CLARIFIED THAT THE COST OF CONSTRUCTION ON DEVELOPMENT OF INFRASTRUCTURE FACILITY OF ROADS/HIGHWAYS UNDER BUILD - OPERATE - TRANSFER (BOT) PROJECTS MAY BE AMORTISED AND CLAIMED AS ALLOWABLE BUSINESS EXPENDITURE UNDER THE ACT. 17. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. SO FAR AS THE RELIANCE OF THE LD. A.R. ON THE ARTICLE/CLAUSE 38.4 OF THE CONCESSION AGREEMENT BETWEEN THE ASSESSEE AND THE NHAI IS CONCERNED, WE FIND THAT THE IDENTICAL CLAUSE WAS ALSO THERE AND R ELIED UPON IN THE CASE OF NORTH KARNATAKA EXPRESSWAY LTD. VS. CIT WHICH HAS ALSO BEEN REPRODUCED IN PARA 8 OF THE ORDER OF THE HONBLE BOMBAY HIGH COURT (SUPRA) . T HE RELEVANT PART OF THE ORDER FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: 8] THE APPELLANT CLAIMED THAT IT WAS THE OWNER OF THE TOLL ROAD AND THE ENTIRE COST INCURRED FOR CONSTRUCTION THEREOF WAS CAPITALIZED BY THE APPELLANT IN ITS BOOKS IN THE ASSESSMENT YEAR 2005 - 06 DURING WHICH THE CONSTRUCTION OF THE TOLL ROAD WAS COMPLETED. AS TH E ASSESSMENT YEAR UNDER CONSIDERATION WAS THE FIRST YEAR WHEN ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 12 THE ROAD BECAME OPERATIONAL, THE APPELLANT CLAIMED DEPRECIATION OF RS.59.92 CRORES AT THE RATE OF 10% ON THE CAPITALIZED COST OF THE TOLL ROAD. THE APPELLANT ALSO FILED NECESSARY DETAILS OF THE CLAIM OF DEPRECIATION AND A NOTE WAS APPENDED TO THE DEPRECIATION SCHEDULE STATING THAT THOUGH THE APPELLANT WAS ENTITLED TO HIGHER CLAIM OF DEPRECIATION ON TOLL ROAD, THE CLAIM IS MADE AT THE RATE OF 10%. THE RIGHT TO CLAIM HIGHER DEPRECIATION IS RESERV ED. THE APPELLANT RELIED UPON THE STANDARD CONCESSION DOCUMENT OF THE NATIONAL HIGHWAY AUTHORITY OF INDIA AND THE CLAUSE THEREIN THAT FOR THE PURPOSE OF CLAIMING TAX DEPRECIATION, THE PROPERTY REPRESENTING THE CAPITAL INVESTMENT MADE BY THE CONCESSIONAIR E SHALL BE DEEMED TO BE ACQUIRED AND OWNED BY THE CONCESSIONAIRE. (EMPHASIS SUPPLIED BY US) 18. THE HONBLE BOMBAY HIGH COURT, HOWEVER, AFTER DISCUSSING THE PROVISIONS OF NATIONAL HIGHWAY ACT, 1956 AND NATIONAL HIGHWAY AUTHORITIES OF INDIA ACT, 1988 A ND VARIOUS CASE LAWS INCLUDING THAT ARE STRONGLY RELIED UPON BY THE LD. A.R. E.G. MYSORE MINERALS LTD. VS. CIT REPORTED IN (1999) 239 ITR 775 SC, CIT VS POD A R CEMENT PVT. LTD. & OTHERS REPORTED IN (1997) 226 ITR 625 SC AND CIT VS. NOIDA TOLL BRIDGE CO MPANY LTD. (ALLAHABAD HC) (SUPRA), HAS HELD THAT THE NATIONAL HIGHWAYS VEST IN THE UNION OF INDIA AND IF THE GOVERNMENT FOR THE PURPOSE OF DEVELOPMENT AND MAINTENANCE OF THE WHOLE OR ANY PART OF THE NATIONAL HIGHWAYS ENTER S INTO AN AGREEMENT WITH PRIVATE PARTIES OR THAT MERELY BECAUSE THE NATIONAL HIGHWAY IS BUILT, MAINTAINED, MANAGED AND OPERATED BY PRIVATE ENTITIES , IN NO WAY AFFECTS THE VESTING OF THE NATIONAL HIGHWAY IN THE UNION AND THAT DOES NOT DILUTE OR TAKE AWAY THE OWNERSHIP OF THE HIGHWAY OR IT S VESTING IN THE UNION . AFTER DISCUSSING THE VARIOUS DECISIONS OF THE HONBLE SUPREME COURT AND OF THE HONBLE HIGH COURTS, THE CONTENTION OF THE ASSESSEE IN THAT CASE THAT IT WAS THE OWNER OF THE TOLL ROAD HAS BEEN REJECTED BY THE HONBLE SUPREME COURT. HENCE, THE CLAUSE 38.4 RELIED UPON BY THE ASSESSEE IN THE PRESENT CASE WILL NOT BE OF ANY HELP TO THE ASSESSEE IN THIS REGARD. 19. HOWEVER, SO FAR AS THE ALTERNATIVE CLAIM OF THE ASSESSEE THAT IF THE ASSESSEE IS NOT FOUND AS OWNER OF THE TOLL ROAD, HIS CLAIM OF DEPRECIATION BE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 13 CONSIDERED IN RELATION TO INVESTMENTS MADE AS FALLING UNDER THE OTHER CATEGORIES OF ASSETS , IS CONCERNED, WE WOULD LIKE TO REVERT TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN NORTH KARNATAKA EXPRESSWAY LTD. VS. CIT (SUPRA ). IN THIS RESPECT. WE FIND THE HONBLE BOMBAY HIGH COURT, IN PARA 24 OF THE SAID DECISION, HAS CATEGORICALLY OBSERVED THAT THE CLAIM OF DEPRECIATION IN THE SAID CASE WAS NOT BASED ON TREATING IT AS AN INTANGIBLE ASSET WITH A RIGHT TO USE THE ASSET WITHOU T BEING ACTUAL OWNER THEREOF. THE ISSUE UNDER CONSIDERATION WAS THAT WHETHER THE TOLL ROADS ARE NOT OWNED BY THE ASSESSEE AND THAT HE CANNOT CLAIM ANY DEPRECIATION THEREUPON. HENCE, THE HONBLE BOMBAY HIGH COURT HAS NOT DISCUSSED THE ISSUE RELATING TO TH E CLAIM OF DEPRECIATION ON THE LICENSE FOR RIGHT TO COLLECT THE TOLL AS INTANGIBLE ASSET. FURTHER, THE HONBLE BOMBAY HIGH COURT IN PARA 39 OF THE DECISION (SUPRA) HAS OBSERVED THAT AS PER THE PROVISIONS OF NATIONAL HIGHWAY ACT, 1956 AND NATIONAL HIGHWAY AUTHORITIES OF INDIA ACT, 1988 , THE OWNERSHIP OF THE TOLL ROAD VESTS IN UNION , HOWEVER, THE TERM OWNER AS APPEARING IN THE INCOME TAX ACT, 1961 HAS BEEN D EFINED W IDELY AND BROADLY FOR THE PURPOSE OF THE PROVISIONS OF THE INCOME TAX ACT SO AS NOT TO ALLOW ANY BODY TO ESCAPE THE PROVISIONS THEREOF BY URGING THAT HE HAS A LIMITED RIGHT OR WHICH IS NOT AKIN TO OWNERSHIP, THEREFORE HIS INCO ME SHOULD NOT BE BROUGHT TO TAX; SIMILARLY, IF HE CAN CLAIM ANY DEDUCTIONS FROM HIS INCOME WHICH IS COMPRISING OF PROFIT AN D GAIN FROM HIS BUSINESS, THEN, THAT DEDUCTION CAN BE AVAILED BY HIM. IT IS FOR THAT LIMITED PURPOSE THAT THE TERM ONWER IS DEFINED IN THIS MANNER IN INCOME TAX ACT, 1961. THE ABOVE OBSERVATIONS OF THE HONBLE BOMBAY HIGH COURT REVEAL THAT FOR THE PU RPOSE OF CLAIMING DEDUCTION UNDER INCOME TAX ACT, THE TERM OWNER AS DEFINED UNDER THE INCOME TAX ACT CAN BE LOOKED INTO. HOWEVER, THAT CANNOT CONTROL , LEAVE ALONE OR OVERREACH THE NATIONAL HIGHWAY ACT, 1956 OR THE NATIONAL HIGHWAY AUTHORITIES OF INDIA A CT, 1988 . THE HONBLE BOMBAY HIGH ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 14 COURT FURTHER , IN PARA 47 OF THE SAID ORDER , HAS OBSERVED THAT THE ASSESSEE CAN DEFINITELY CLAIM DEPRECIATION ON THE INVESTMENTS. HE HAS DEFINITELY INVESTED IN THE PROJECTS OF CONSTRUCTION DEVELOPMENT AND MAINT ENANCE OF THE NATIONAL HIGHWAYS AND SUCH OF THE ASSETS IN THE FORM OF BUILDING, PLANT & MACHINERY ETC. T HE CLAIM FOR DEPRECIATION CAN BE VALIDLY R AISED AND GRANTED. THAT THE HONBLE HIGH COURT IN THE SAID CASE WAS ONLY CONCERNED WITH THE CLAIM ON THE LAND OR A ROAD ITSELF . FURTHER, IN CONCLUDING PARA 52 OF THE ORDER, THE HONBLE BOMBAY HIGH COURT HAS CATEGORICALLY CLARIFIED THAT THE ASSESSEES CLAIM FOR DEPRECIATION IN RESPECT OF THE BUILDING, PLANT & MACHINERY AND FALLING WITHIN THE PURVIEW OF SUB SECTION (1) OF SE CTION 32 OF THE INCOME TAX ACT, 1961 , IF CONSIDERED AND GRANTED , SHALL NOT BE AFFECTED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT. 2 0 . A CAREFUL READING OF THE ENTIRE DECISION OF THE HONBLE BOMBAY HIGH COURT AND IN THE LIGHT OF THE VARIOUS OBSERV ATIONS MADE IN JUDGMENT AS DISCUSSED ABOVE, IT IS VERY CLEAR THAT THE HONBLE BOMBAY HIGH COURT WAS CONCERNED ABOUT THE ISSUE AS TO WHETHER THE ASSESSEE CAN CLAIM ITSELF AS THE OWNER OF THE TOLL ROAD AND THE HONBLE BOMBAY HIGH COURT HAS HELD THAT IN VIEW OF THE EXPRESS PROVISIONS OF THE NATIONAL HIGHWAY ACT, 1956 AND NATIONAL HIGHWAY AUTHORITIES OF INDIA ACT, 1988 THE UNION IS THE ABSOLUTE OWNER OF THE NATIONAL HIGHWAYS AS WELL AS THE TOLL ROADS BUILT UPON THE LAND/NATIONAL HIGHWAYS IN AGREEMENT AND THROUG H THE PRIVATE PARTIES AND SUCH PRIVATE PARTIES CANNOT CLAIM THEMSELVES TO BE THE OWNER OF THE TOLL ROAD. HOWEVER, THE HONBLE BOMBAY HIGH COURT HAS LEFT UPON THE ISSUE RELATING TO THE CLAIM OF DEPRECIATION, IF OTHERWISE ELIGIBLE UNDER THE OTHER PROVISIONS OF THE INCOME TAX ACT. 2 1 . THE LD. A.R., BEFORE US, HAS PUT THE ALTERNATIVE CLAIM THAT IN VIEW OF THE OBSERVATIONS OF THE HONBLE BOMBAY HIGH COURT EITHER THE INVESTMENTS MADE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 15 BY THE ASSESSEE BE TREATED UNDER THE ASSET BUILDING, PLANT & MACHINERY AND D EPRECIATION BE GRANTED ACCORDINGLY OR THE SAME BE TREATED AS INTANGIBLE ASSET ON THE GROUND THAT THE ASSESSEE HAS BEEN GRANTED LICENSE FOR RIGHT TO COLLECT THE TOLL TAX FOR A FIXED PERIOD. NOW THE QUESTION BEFORE US IS WHETHER THE ASSESSEE AT THIS STAGE T HE CAN RAISE THE ALTERNATIVE CONTENTION FOR CLAIM OF ALLOWANCE OF DEPRECIATION ON THE LICENSE AUTHORIZING HIM TO COLLECT THE TOLL BEING AN INTANGIBLE ASSET OR TREATING THE PROJECT AS PLANT & MACHINERY ? 2 2 . WE MAY OBSERVE THAT THE HONBLE BOMBAY HIGH COUR T IN THE CASE OF PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. (SUPRA), WHILE RELYING UPON THE VARIOUS DECISIONS OF THE HONBLE SUPREME COURT AND OTHER HONBLE HIGH COURTS, HAS HELD THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE AO IT CAN BE MADE BEFORE THE APPE LLATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUTHORITIES TO ENTERTAIN SUCH A CLAIM IS NOT BARRED. THE HONBLE BOMBAY HIGH COURT WHILE RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA LIMITED VS. CIT 1991 SUPP (2) SCC 744 = (1991) 187 ITR 688 HAS OBSERVED THAT THE POWER OF THE APPELLATE COMMISSIONER IS COTERMINOUS WITH THAT OF THE INCOME TAX OFFICER AND AN APPELLATE AUTHORITY WHILE HEARING APPEAL AGAINST THE ORDER OF THE SUBORDINATE AUTHORITY, HAS AL L THE POWERS WHICH THE ORIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTIONS BEFORE IT, SUBJECT TO THE RESTRICTIONS OR LIMITATIONS, IF ANY, PRESCRIBED BY STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION, THE APPELLATE AUTHORITY IS VESTED WI TH ALL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. AN ASSESSEE IS ENTITLED TO RAISE NOT MERELY ADDITIONAL LEGAL SUBMISSIONS BEFORE THE APPELLATE AUTHORITIES BUT IS ALSO ENTITLED TO RAISE ADDITIONAL CLAIMS BEFORE THEM. THE A PPELLATE AUTHORITIES HAVE THE DISCRETION WHETHER OR NOT TO PERMIT SUCH ADDITIONAL CLAIMS TO BE RAISED. IT CANNOT, HOWEVER, BE SAID THAT THEY HAVE NO JURISDICTION TO CONSIDER THE SAME. THE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 16 APPELLATE AUTHORITIES HAVE JURISDICTION TO DEAL NOT MERELY WITH AD DITIONAL GROUNDS WHICH BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTANCES OR LAW, BUT WITH ADDITIONAL GROUNDS WHICH WERE AVAILABLE WHEN THE RETURN WAS FILED BUT COULD NOT HAVE BEEN RAISED AT THAT STAGE . THE WORDS COULD NOT HAVE BEEN RAISED MUST BE C ONSTRUED LIBERALLY AND NOT STRICTLY. IT IS OPEN TO THE ASSESSEE TO CLAIM A DEDUCTION BEFORE THE APPELLATE AUTHORITY WHICH COULD NOT HAVE BEEN CLAIMED BEFORE THE AO. THE HONBLE BOMBAY HIGH COURT HAS FURTHER OBSERVED THAT THE DECISION OF HONBLE SUPREME C OURT IN THE CASE OF GOETZE (INDIA) LIMITED V. CIT (2006) 157 TAXMAN 1, REGARDING THE RESTRICTION OF MAKING THE CLAIM THROUGH A REVISED RETURN WAS LIMITED TO THE POWERS OF THE ASSESSING AUTHORITY AND THE SAID JUDGMENT DOES NOT IMPINGE ON THE POWER OR NEGA TE THE POWERS OF THE APPELLATE AUTHORITIES TO ENTERTAIN SUCH CLAIM BY WAY OF ADDITIONAL GROUND. RELIANCE CAN ALSO BE PLACED IN THIS REGARD ON THE DECISIONS OF THE TRIBUNAL IN THE CASE OF PV. ANANTHKRISHNAN VS. ACIT IN ITA NO.1820/M/2011 DECIDED ON 05.05 .2014 AND IN THE CASE OF THE PRESIDENCY CO - OPERATIVE HOUSING SOCIETY LTD. VS. ACIT IN ITA NO. 4051/M/2011 DECIDED ON 16.05.2014 . THE PRESENT CASE IS NOT A CASE WHERE THE ASSESSEE HAD NOT CLAIMED ANY DEDUCTION ON ACCOUNT OF DEPRECIATION. THE ASSESSEE HA S VERY MUCH CLAIMED THE DEDUCTION OF DEPRECIATION. HOWEVER, HE HAS CLAIMED THE SAME TREATING ITSELF TO BE THE OWNER OF THE TOLL ROAD. SUCH A CLAIM OF THE ASSESSEE HAS BEEN ALLOWED IN THE PREVIOUS ASSESSMENT YEARS. THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT HE HAS CORRECTLY CLAIMED THE DEDUCTION OF DEPRECIATION ON THE TOLL ROAD IN VIEW OF THE CONSISTENT FINDINGS OF THE TRIBUNAL ON THIS ISSUE. HOWEVER, DUE TO THE CHANGE OF LEGAL POSITION IN VIEW OF THE LAW LAID DOWN BY THE HONBLE BOMBAY HIGH COURT (SUPR A), THE ASSESSEE CANNOT BE TREATED AS THE OWNER OF THE TOLL ROAD. BUT IT IS NOT DISPUTED THAT THE ASSESSEE HAS MADE INVESTMENTS ON THE PROJECT AND ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 17 HE IS ENTITLED TO CLAIM DEDUCTIONS IN THIS RESPECT. THE CLAIM OF DEDUCTION HAS BEEN VERY MUCH PUT BY THE AS SESSEE IN THE RETURN OF INCOME BUT WRONGLY TREATING ITSELF AS OWNER OF THE ROAD WHICH CLAIM AS OBSERVED ABOVE WAS UNDER BONAFIDE BELIEF AND IN VIEW OF THE SETTLED LEGAL POSITION AS WAS THERE AT THE TIME OF PUTTING THE CLAIM. EVEN THE AO HAS ALSO OBSERVED IN THE ASSESSMENT ORDER THAT IT IS A FACT THAT THE ASSESSEE COMPANY HAS INCURRED HUGE EXPENDITURE ON THE SAID PROJECT WHICH CANNOT BE TREATED AS REVENUE EXPENDITURE ALLOWABLE IN ONE YEAR AS THE SAME HAS RESULTED INTO PROVIDING ENDURING BENEFIT TO THE ASSES SEE COMPANY , H ENCE, THE SAID AMOUNT WOULD BE ELIGIBLE FOR AMORTIZATION FOR THE PERIOD OF THE CONCESSION AGREEMENT AS IT WAS ALLOWED IN THE A.Y. 2007 - 08 AND 2008 - 09. IT IS ALSO A FACT THAT THE SAID AMORTIZATION OF THE EXPENSES HAS NOT BEEN ACCEPTED BY THE TRIBUNAL AND THE ASSESSEE IN THE EARLIER ASSESSMENT YEARS HAS BEEN GRANTED DEDUCTION AS DEPRECIATION TREATING THE ROAD AS A CAPITAL ASSET. 2 3 . IN VIEW OF THE ABOVE FACTS, IT IS NOT DISPUTED OR CONTESTED BY THE REVENUE THAT THE ASSESSEE IS NOT ENTITLED T O ANY DEDUCTION. THE ONLY ISSUE IN DISPUTE IS AS TO UNDER WHAT HEAD /PROVISION THE DEDUCTION IS TO BE ALLOWED TO THE ASSESSEE. THE HONBLE JURISDICTION HIGH COURT OF BOMBAY IN THE CASE OF BALM UKUND ACHARYA VS. DCIT REPORTED IN (2009) 221 CTR 440 (BOM.) HAS HELD THAT THE HONBLE APEX COURT AND THE VARIOUS HIGH COURTS HAVE RULED THAT THE AUTHORITIES UNDER THE ACT ARE UNDER OBLIGATION TO ACT IN ACCORDANCE WITH LAW. TAX CAN BE COLLECTED ONLY AS PROVIDED UNDER THE ACT. IF THE ASSESSEE , UNDER A MISTAKE, MIS CONCEPTION OR ON NOT BEING PROPERLY INSTRUCTED IS OVER ASSESSED , THE AUTHORITIES UNDER THE ACT ARE REQUIRED TO ASSIST HIM AND ENSURE THAT ONLY LEGITIMATE TAXES DUE S ARE COLLECTED. WHILE HOLDING SO, THE HONBLE BOMBAY HIGH COURT HAS RELIED UPON THE VARIOUS DECISIONS E.G. KOSHTI VS. CIT (2005) 193 CTR (GUJ) 518 : (2005) 276 ITR 165 (GUJ), C.P.A. YOOSUF VS. ITO (1970) 77 ITR 237 (KER.), CIT VS. BHARAT GENERAL REINSURANCE CO. LTD. (1971) 81 ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 18 ITR 303 (DEL), CIT VS. ARCHANA R. DHANWATEY (1981) 24 CTR (BOM) 142 : (1982) 136 ITR 355 (BOM). IN VIEW OF THE ABOVE DISCUSSED FACTUAL AND LEGAL POSITION, WE HAVE NO HESITATION TO HOLD THAT THE ASSESSEE IS ENTITLED TO PUT HIS ALTERNATE CLAIM THAT THE DEDUCTION ALLOWABLE TO HIM MAY BE CONSIDERED AS ALLOWABLE AS DEPRECIATION TREATING THE PROJECT/INVESTMENTS MADE UNDER THE HEAD P LANT & MACHINERY OR TREATING IT AS A RIGHT/LICENSE TO COLLECT THE TOLL TAX AS INTANGIBLE ASSET. 2 4 . H AVING HELD THAT THE ASSESSEE IS ENTITLED TO THE DEDUCTION ON THE INVESTMENTS MADE BY HIM, WE NO W HAVE TO DISCUSS AS TO UNDER WHAT HEAD THE SAID DEDUCTIONS CAN BE CLAIMED BY THE ASSESSEE. IT IS UNDISPUTED THAT IN VIEW OF THE AGREEMENT WITH THE NHAI, THE ASSESSEE HAS BEEN GIVEN THE RIGHT TO DEVELOP AND MAINTAIN THE TOLL ROAD AND ALSO THE RIGHT TO COL LECT TOLL FOR A SPECIFIED PERIOD WITHOUT HAVING ACTUAL OWNERSHIP OVER THE SAID TOLL ROAD. THE ASSESSEE HAS AN EXPRESS RIGHT/LICENSE FOR RECOVERY OF TOLL FEE TO RECOUP THE EXPENDITURE. THE SAID RIGHT BRINGS TO THE ASSESSEE AN ENDURING BENEFIT DURING THE P ERIOD OF AGREEMENT. THIS FACT HAS ALSO BEEN DISCUSSED BY THE CBDT IN CIRCULAR NO.09/2014 DATED 23.04.14. THE PARA 4 OF WHICH , FOR THE SAKE OF CONVENIENCE , IS REPRODUCED AS UNDER: THERE IS NO DOUBT THAT WHERE THE ASSESSEE INCURS EXPENDITURE ON A PROJE CT FOR DEVELOPMENT OF ROADS/HIGHWAYS, HE IS ENTITLED TO RECOVER COST INCURRED BY HIM TOWARDS DEVELOPMENT OF SUCH FACILITY (COMPRISING OF CONSTRUCTION COST AND OTHER PRE - OPERATIVE EXPENSES) DURING THE CONSTRUCTION PERIOD. FURTHER, EXPENDITURE INCURRED BY T HE ASSESSEE ON SUCH BOT PROJECTS BRINGS TO IT AN ENDURING BENEFIT IN THE FORM OF RIGHT TO COLLECT THE TOLL DURING THE PERIOD OF THE AGREEMENT. HONBLE SUPREME COURT IN THE CASE OF MADRAS INDUSTRIAL INVESTMENT CORPORATION LTD. VS. CIT IN 225 ITR 802 ALLOWE D SPREADING OVER OF LIABILITY OVER A NUMBER OF YEARS ON THE GROUND THAT THERE WAS CONTINUING BENEFIT TO THE COMPANY OVER A PERIOD. THEREFORE, ANALOGOUSLY, EXPENDITURE INCURRED ON AN INFRASTRUCTURE PROJECT FOR DEVELOPMENT OF ROADS/HIGHWAYS UNDER BOT AGREEM ENT MAY BE TREATED AS HAVING BEEN MADE/INCURRED FOR THE PURPOSES OF BUSINESS OR PROFESSION OF THE ASSESSEE AND THE SAME MAY BE ALLOWED TO BE SPREAD DURING THE TENURE OF CONCESSIONAIRE AGREEMENT. ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 19 2 5 . HAVING DISCUSSED THE ABOVE STATED FACTUAL POSITION, T HE CBDT HAS DIRECTED TO TREAT THE ABOVE EXPENDITURE AS REVENUE EXPENDITURE AND TO AMORTIZE THE SAME OVER THE PERIOD OF THE AGREEMENT AS ALLOWABLE BUSINESS EXPENDITURE. THE ASSESSEE, HOWEVER, HAS CLAIMED THAT THE SAME IS A CAPITAL EXPENDITURE AND IT IS ENT ITLED TO DEDUCTIONS OVER THE INVESTMENTS MADE AS DEPRECIATION. A PERUSAL OF THE ABOVE REPRODUCED PARA 4 OF THE CIRCULAR REVEALS THAT IT IS NOT DISPUTE D EVEN BY THE REVENUE AUTHORITIES THAT IN LIEU OF THE INVESTMENTS MADE IN THE PROJECT , THE ASSESSEE HAS B EEN GIVEN RIGHT/LICENSE TO COLLECT THE TOLL. IT HAS ALSO BEEN SPECIFICALLY MENTIONED THAT IT BRINGS AN ENDURING BENEFIT IN THE FORM OF RIGHT TO THE ASSESSEE. HAVING ADMITTED THE ABOVE POSITION BY THE REVENUE, NOW THE QUESTION TO BE CONSIDERED IS WHETHER ANY DEPRECIATI ON IS ALLOWABLE ON SUCH A RIGHT ? 2 6 . A S PER SECTION 32(1 )(II) DEPRECIATION IS ALLOWABLE ON INTANGIBLE ASSETS LIKE LICENSES, FRANCHISES OR ANY OTHER BUSINESS OR SIMILAR COMMERCIAL RIGHTS OF SIMILAR NATURE. THE RELEVANT PART OF THE SECTION F OR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: DEPRECIATION. 32. (1) [IN RESPECT OF DEPRECIATION OF (I) BUILDINGS, MACHINERY, PLANT OR FURNITURE, BEING TANGIBLE ASSETS; (II) KNOW - HOW, PATENTS, COPYRIGHTS, TRADE MARKS , LICENCES , FRANCHISES OR A NY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE , BEING INTANGIBLE ASSETS ACQUIRED ON OR AFTER THE 1 ST DAY OF APRIL, 1998, OWNED, WHOLLY OR PARTLY, BY THE ASSESSEE AND USED FOR THE PURPOSES OF THE BUSINESS OR PROFESSION, THE FOLLOWING DEDUCTIONS SH ALL BE ALLOWED ] . (EMPHASIS SUPPLIED BY US) 2 7 . IT IS NOT DISPUTED THAT THE ASSESSEE HAS BEEN GIVEN LICENSE/COMMERCIAL RIGHT OVER THE PROJECT TO RECEIVE THE TOLL. THE ASSESSEE MAY NOT BE THE OWNER OF THE TOLL ROAD , B UT HE, CERTAINLY, IS OWNER IN PO SSESSION OF THE RIGHT TO COLLECT THE TOLL. THE SAID RIGHT HAS BEEN GIVEN TO THE ASSESSEE FOR A SPECIFIED PERIOD WITH ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 20 ENDURING BENEFIT. IT IS ALSO NOT DISPUTED THAT ON THE EXPIRY OF THE TIME PERIOD OF THE AGREEMENT, THE SAID RIGHT OF THE ASSESSEE WILL CEA SE TO HAVE EFFECT WHICH MEANS IT SLOWLY WILL DEPRECIATE TO THE NIL VALUE. AS PER THE PROVISIONS OF THE INCOME TAX ACT , ESPECIALLY UNDER SECTION 32 ( 1 )(II) , THE ASSESSEE IS ENTITLED TO CLAIM OF DEPRECIATION ON SUCH TYPE OF RIGHTS. SUCH RIGHTS HAVE BEEN DES CRIBED AS INTANGIBLE ASSETS UNDER THE ACT AND ARE ELIGIBLE FOR CLAIM OF DEPRECIATION. 2 8 . IN VIEW OF THE EXPRESS PROVISIONS OF THE ACT, WE HAVE NO DOUBT TO HOLD THAT THE ASSESSEE IS ENTITLED TO COLLECT TAX BEING AN INTANGIBLE COM MERCIAL RIGHT UNDER SECT ION 32(1 )(II) AT THE RATE AS HAS BEEN PRESCRIBED UNDER THE RELEVANT R ULES. OUR ABOVE VIEW IS FURTHER SUPPORTED BY THE DECISION OF THE CO - ORDINATE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ASHOK A INFRASTRUCTURE LTD. VS. ITO IN ITA NO.989/PN/2010 & ITA NO. 1105/PN/2010, WHEREIN, THE TRIBUNAL WHILE FURTHER RELYING UPON ANOTHER DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOKA INFRAWAYS PVT. LTD. VS. ACIT IN ITA NO. 185 & 186/PN/2012 DATED 29.04.2013, HAS HELD IN CLEAR TERMS THAT THE CLAIM OF THE ASSESSEE FOR DEPRECIATION ON LICENCE TO COLLECT TOLL BEING AN INTANGIBLE ASSET FALLING WITHIN THE SCOPE OF SECTION 32(1)(II) OF THE ACT IS LIABLE TO BE UPHELD. THE RELEVANT PART OF FINDINGS OF THE TRIBUNAL FOR THE SAKE OF CONVENIENCE IS R EPRODUCED AS UNDER: 6. AT THE TIME OF HEARING, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT AN IDENTICAL IS SUE HAS BEEN CONSIDERED BY THE P UNE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOKA INFRAWAYS PVT. LTD. VS. ACIT VIDE ITA NOS. 185 & 186/PN/2012 DAT ED 29.04.2013. AS PER THE TRIBUNAL FOLLOWING THE PRECEDENTS BY WAY OF VARIOUS DECISIONS OF DIFFERENT BENCHES OF THE TRIBUNAL MENTIONED THEREIN, THE CLAIM OF THE ASSESSEE FOR TREATING THE 'LICENSE TO COLLECT TOLL' AS AN INTANGIBLE ASSET ELIGIBLE FOR THE CLA IM OF DEPRECIATION @ 25% AS PER SECTION 32(1)(II) OF THE ACT WAS JUSTIFIED. THE FOLLOWING DISCUSSION IN THE ORDER OF THE TRIBUNAL DATED 29.04.2013 (SUPRA) IS RELEVANT : - '7. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE IMPUGNED ISSUE HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE IN THE FOLLOWING DECISIONS OF THE TRIBUNAL: - I) ASHOKA BUILDCON LTD. IN ITA.NO.1302/PN/09 DATED 20.03.2012. ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 21 II) M/S. KALYAN TOLL INFRASTRUCTURE LTD. IN ITA.NOS.201 & 2 47/IND/2008 DATED 14.12.2010. III) DIMENSION CONSTRUCTION PVT. LTD. IN 1TA.NO.222, 223, 233 & 857/PN/2009 DATED 18.03.2011. IV) ASHOKA INFO (P) LTD. (SUPRA) V) RELIANCE PORTS AND TERMINALS LTD. (SUPRA). 8. THE LD. CIT(DR) APPEARING FOR THE REVENUE, HAS SUBMITTED THAT THE 'INTANGIBLE ASSETS' ELIGIBLE FOR DEPRECIATION IN SECTION 32(1) (II ) OF THE ACT, ARE ONLY THOSE WHICH ARE OWNED BY THE ASSESSEE AND HAVE BEEN ACQUIRED AFTER SPENDING MONEY. IN THE CASE OF THE ASSESSEE, BY WAY OF AN AGREEMENT, ASSESSEE WAS AWARDED A WORK TO CONSTRUCT A ROAD BY USING OWN FUNDS AND THE EXPENDITURE INCURRED WAS ALLOWED TO BE REIMBURSED BY PERMITTING THE ASS ESSEE A CONCESSION TO COLLECT TOLL/FEES FROM THE MOTORISTS USING THE ROAD. THEREFORE, IT COULD NOT BE SAID THAT SUCH A RIGHT WAS WITHIN THE PURVIEW OF SECTION 32(1)(II) OF THE ACT. HOWEVER, THE LD. CIT(DR) HAS NOT CONTESTED THE FACTUAL MATRIX THAT IDENTICAL ISSUE HAS BEEN CONSIDERED BY OUR COORDINATE BENCHES IN THE CASE OF ASHOKA BUILDCON LTD. (SUPRA), KALYAN TOLL INFRASTRUCTURE LTD. (SUPRA), DIMENSION CONSTRUCTION PVT. LTD . (SUPRA) AND ASHOKA INFO (P) LTD. (SUPRA). 9. ON THE OTHER HAND, THE LD. REPRESENTATIVE FOR THE RESPONDENT ASSESSEE POINTED OUT THAT THE AFORESAID ARGUMENT SET UP BY THE REVENUE HAS ALSO BEEN CONSIDERED IN THE AFORESAID PRECEDENTS BEFORE CONCLUDING THAT THE IMPUGNED 'RIGHT TO COLLECT TOLL' WAS AN 'INTANGIBLE ASSET' ELIGIBLE FOR CLAIM OF DEPRECIATION @ 25% AS PER SEC. 32(1)01) OF THE ACT. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. FACTUALLY S PEAKING, THERE IS NO DISPUTE TO THE FACT THAT THE COSTS CAPITALISED BY THE ASSESSEE UNDER THE HEAD 'LICENSE TO COLLECT TOLL' HAVE BEEN INCURRED FOR DEVELOPMENT AND CONSTRUCTION OF THE INFRASTRUCTURE FACILITY, I.E., DEWAS BY - PASS ROAD. IT IS ALSO NOT IN DISPUTE THAT THE ASS ESSEE WAS TO BUILD, OPE RATE AND TRANSFER THE SAID INFRASTRUCTURE FACILITY IN TERMS OF AN AGREEMENT WITH THE GOVERNMENT OF MADHYA PRADESH. THE EXPENDITURE ON DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY FOR A SPECIFIED PERIOD WAS TO BE INCURRED BY THE ASS ESSEE OUT OF ITS OWN FUNDS. MOREOVER, AFTER THE END OF THE SPECIFIED PERIOD, ASSESSEE WAS TO TRANSFER THE SAID INFRASTRUCTURE FACILITY TO THE GOVERNMENT OF MADHYA PRADESH FREE OF CHARGE. IN CONSIDERATION OF DEVELOPING, CONSTRUCTING, MAINTAINING THE FACI LITY FOR A SPECIFIED PERIOD AND THEREAFTER TRANSFERRING IT TO THE GOVERNMENT OF MADHYA PRADESH FREE OF CHARGE, ASSESSEE WAS GRANTED A RIGHT TO COLLECT TOLL' FROM THE MOTORISTS USING THE SAID INFRASTRUCTURE FACILITY DURING THE SPECIFIED PERIOD. THE SAID RIG HT TO COLLECT THE TOLL' IS EMERGING AS A RESULT OF THE COSTS INCURRED BY THE ASSESSEE ON DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY. SUCH A RIGHT HAS BEEN ADJUDICATED BY THE TRIBUNAL IN THE AFORESAID PRECEDENTS TO BE IN THE NA TURE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 22 OF 'INTANGIBLE ASSET' FALLING WITHIN THE PURVIEW OF SECTION 32(1)(I/) OF THE ACT AND HAS BEEN FOUND ELIGIBLE FOR CLAIM OF DEPRECIATION. NO DECISION TO THE CONTRARY HAS BEEN CITED BY THE LD. DR BEFORE US AND, THEREFORE, WE FIND NO REASONS TO DEPART FRO M THE ACCEPTED POSITION BASED ON THE AFORESAID DECISIONS. 11. SO HOWEVER, THE PLEA OF THE LD. DR BEFORE US IS TO THE EFFECT THAT THE IMPUGNED RIGHT IS NOT OF THE NATURE REFERRED TO IN SECTION 32(1)(II) OF THE ACT FOR THE REASON THAT THE AGREEMENT WITH THE GOVERNMENT OF MADHYA PRADESH ONLY ALLOWED THE ASSESSEE TO RECOVER THE COSTS INCURRED FOR CONSTRUCTING THE ROAD FACILITY WHEREAS SECTION 32(1)(I1) OF THE ACT REQUIRED THAT THE ASSETS MENTIONED THEREIN SHOULD BE ACQUIRED BY THE ASSESSEE AFTER SPENDING MONEY. THE SAID ARGUMENT IN OUR VIEW IS FACTUALLY AND LEGALLY MISPLACED. FACTUALLY SPEAKING, IT IS WRONG TO SAY THAT IMPUGNED RIGHT ACQUIRED BY THE ASSESSEE WAS WITHOUT INCU RRENCE OF ANY COST. IN FACT, IT I S QUITE EVIDENT THAT ASSESSEE GOT THE RIGHT TO COLLECT T OLL FOR THE SPECIFIED PERIOD ONLY AFTER INCURRING EXPENDITURE THROUGH ITS OWN RESOURCES ON DEVELOPMENT, CONSTRUCTION AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY. SECONDLY, SECTION 32(1)(I1) PERMITS ALLOWANCE OF DEPRECIATION ON ASSETS SPECIFIED THEREIN B EING 'INTANGIBLE ASSETS' WHICH ARE WHOLLY OR PARTLY OWNED BY THE ASSESSEE AND USED FOR THE PURPOSES OF ITS BUSINESS. THE AFORESAID CONDITION IS FULLY SATISFIED BY THE ASSESSEE AND THEREFORE CONSIDERED IN THE AFORESAID PERSPECTIVE WE FIND NO JUSTIFICATION F OR THE PLEA RAISED BY THE REVENUE BEFORE US. 12. IN THE RESULT, WE AFFIRM THE ORDER OF THE CIT(A) IN HOLDING THAT THE ASS ESSEE WAS ELIGIBLE FOR DEPRECIATION ON THE RIGHT TO COLLECT TOLL', BEING AN INTANGIBLE ASSET' FALLING WITHIN THE PURVIEW OF SECTION 3 2(1)(I1) OF THE ACT FOLLOWING THE AFORESAID PRECEDENTS.' 7. IN TERMS OF THE AFORESAID PRECEDENT, THE CLAIM OF THE ASSESSEE IN THE PRESENT CASE FOR DEPRECIATION ON 'LICENSE TO COLLECT TOLL', BEING AN 'INTANGIBLE ASSET' FALLING WITH THE SCOPE OF SECTION 32( 1 )(II) OF THE ACT IS LIABLE TO BE UPHELD. WE HOLD SO. 8. IN SO FAR AS THE RELIANCE PLACED BY THE CIT(A) ON THE JUDGEMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF TECHNO SHARES AND STOCKS LTD. (SUPRA) IS CONCERNED IT MAY ONLY BE NOTED THAT THE SAID JUDGEMENT HAS SINCE BEEN ALTERED BY THE HON'BLE SUPREME COURT VIDE ITS ORDER REPORTED AT (2010) 327 ITR 323 (SC). ACCORDINGLY, IN VIEW OF THE AFORESAID DISCUSSION, WE HEREBY ALLOW THE GROUND OF APPEAL NO. 1.1 RAISED BY THE ASSESSEE. 29 . IN VIEW OF OUR O BSERVATIONS MADE IN THE PRECEDING PARAS AND ALSO AGREEING WITH THE ABOVE REPRODUCED FINDINGS OF THE TRIBUNAL, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEPRECIATION ON THE ROAD TO COLLECT TOLL BEING ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 23 AN INTANGIBLE ASSET FALLING WITHIN THE PURVIE W OF SECTION 32(1) (II) OF THE ACT. 3 0 . SO FAR AS THE OTHER ALTERNAT IVE CONTENTION OF THE ASSESSEE THAT THE PROJECT BE TREATED AS PLANT & MACHINERY AND THE DEPRECIATION BE ACCORDINGLY ALLOWED TO IT, WE DO NOT FIND THAT THE SAID LICENSE OF RIGHT TO COLLE CT TOLL IN ANY WAY FALLS IN THE DEFINITION OF PLANT & MACHINERY . A S HELD BY THE HONBLE BOMBAY HIGH COURT , EVEN THE ASSESSEE IS NOT THE OWNER OF THE TOLL ROAD. THE ASSESSEE HAS BEEN GIVEN ONLY THE RIGHT TO DEVELOP, MAINTAIN AND OPERATE THE TOLL ROAD AND F URTHER TO COLLECT THE TOLL FOR THE SPECIFIED PERIOD. THIS RIGHT AS DISCUSSED ABOVE IS AN INTANGIBLE ASSET FALLING UNDER SECTION 32(1)(II) OF THE ACT. 3 1 . SO FAR AS THE CONTENTION OF THE REVENUE THAT THE INVESTMENT MADE BY THE ASSESSEE BE TREATED AS A REV ENUE EXPENDITURE AND BE AMORTIZED FOR THE PERIOD OF THE AGREEMENT , IS CONCERNED, WE DO NOT FIND ANY FORCE IN THE SAME ON THE GROUND THAT NOT ONLY THE AO BUT ALSO THE CBDT IN THE CIRCULAR (SUPRA) AS DISCUSSED ABOVE HA S ADMITTED THAT THE LICENSE OF RIGHT TO COLLECT TOLL FREE HAS BEEN GIVEN TO THE ASSESSEE IN LIEU OF THE INVESTMENTS MADE AND THAT SUCH A RIGHT BRINGS TO THE ASSESSEE AN ENDURING BENEFIT. THE INVESTMENTS MADE UNDER SUCH CIRCUMSTANCES CANNOT BE SAID TO BE OF REVENUE IN NATURE BUT, AS DISCUSSED AB OVE, ARE OF CAPITAL IN NATURE . THE ASSESSEE, THUS, IS ENTITLED TO CLAIM DEPRECIATION ON SUCH TYPE OF CAPITAL ASSET. 3 2 . IN VIEW OF OUR ABOVE FINDINGS, THIS GROUND OF THE REVENUE IS HEREBY DISMISSED BUT ON A DIFFERENT FOOTING AS DISCUSSED ABOVE AND IN T ERMS OF OUR OBSERVATIONS MADE ABOVE. 3 3 . NOW WE TAKE UP THE ASSESSEE S APPEAL BEARING ITA NO. 6244/M/2012. ITA NO.6244/M/2012 3 4 . THE ASSESSEE IN ITS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 24 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LE ARNED COMMISSIONER O F INCOME TAX HAS ERRED IN CONCLUDING THAT THE 'TOLL ROAD' DOES NOT FALL UNDER THE CATEGORY OF 'PLANT & MACHINERY'. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN GRANTING THE DEPRECIATION ON THE TOLL ROAD TREATING AS 'BUILDING'. THE APPELLANT CLAIMS THAT DEPRECIATION ON THE TOLL ROAD BE GRANTED TREATING THE SAME AS PLANT AND MACHINERY. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE APPELLANT PRAYS THAT THE DEPRECIATION @ 15% BE GRANTED ON THE TOLL ROAD INSTEAD OF @ 10% ALLOWED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) HAS ERRED IN DISALLOWING THE CLAIM OF EXPENSES INCURRED IN RELATION TO INCREASE IN AUT HORISED SHARE CAPITAL OF RS. 8,64 , 400/ - . THE APPELLANT PRAYS THAT THE CONDITIONS OF SECTION 3 5 D ARE FULLY SATISFIED AND THE APPELLANT IS ENTITLED TO CLAIM 1 / 5 TH OF THE EXPENSES INCURRED AS REVENUE. THE APPELLANT PRAYS THAT THE ADDITION MADE BY THE LEARN ED ASSESSING OFFICER IS CONTRARY TO THE FACTS AND THE SAID ADDITION MAY BE DELETED. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN CONFIRMING THAT THE APPELLANT IS LIABLE TO PAY INTERE S T U / S 234B OF THE INCOME TAX ACT , 1961 . THE APPELLANT DENIES THE LI A BILITY OF PAYMENT OF INTEREST U / S 234B. THE APPELLANT PRAYS THAT THE LE VY OF INTEREST U / S 234B IS NOT JUSTIFIED AND BE DELETED. 5. THE APPELLANT CRA V ES LE A VE TO ADD, ALTER OR AMEND THE GROU NDS OF APPEAL WHICH ARE WITHOUT PREJUDICE TO ONE OTHER . GROUND NO S .1 & 2 : 3 5 . GROUND NOS.1 & 2 RELATE TO THE ISSUE O F CLAIM ON DEPRECIATION ON TOLL ROAD. THESE ISSUES HAVE ALREADY BEEN TAKEN AND DECIDED BY US AS DISCUSSED ABOVE IN REVENUES APPEAL. IN VIEW OF OUR FINDINGS GIVEN ABOVE, THESE ISSUES ARE TREATED AS DECIDED ACCORDINGLY. GROUND NO.3 3 6 . GROUND NO.3 RELATES TO THE DISALLOWANCE OF CLAIM OF EXPENSES INCURRED IN RELATION TO INCREASE IN AUTHORIZED SHARE CAPITAL. THE LD. AO HAD DISALLOWED T HE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 25 SAID EXPENDITURE OBSERVING THAT ANY EXPENDITURE INCURRED BY A COMPANY IN CONNECTION WITH THE ISSUE OF SHARES WITH A VIEW TO INCREASE ITS CAPITAL IS A CAPITAL EXPENDITURE. HE ALSO OBSERVED THAT BY RAISING THE WORKING CAPITAL, THE ASSESSEE HAD EXPANDED I TS BUSINESS AND THEREFORE THE AFOREMENTIONED EXPENSES WERE CAPITAL IN NATURE. 37 . THE LD. CIT(A) ALSO CONFIRMED THE FINDING OF THE AO TO THE EFFECT THAT THE EXPENDITURE INCURRED FOR INCREASE IN SHARE CAPITAL FOR EXPANSION OF THE BUSINESS WAS CAPITAL IN NATURE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 3 8 . BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAD INCURRED PRE - OPERATION EXPENSES IN THE FINANCIAL YEAR 2005 - 06, 2006 - 07 & 200 7 - 08. SINCE THE ENTIRE ROAD PROJECT WAS FULLY COMPLETED AND CAPITALIZED IN A.Y. 2009 - 10, THE ASSESSEE HAD CLAIMED 1/5 TH OF THE EXPENSE INCURRED AS DEDUCTION UNDER SECTION 35D OF THE ACT. HE HAS FURTHER SUBMITTED THAT THE SAID ADDITIONAL SHARE CAPITAL RAI SED BY WAY OF ISSUANCE OF REDEEMABLE O PTIONALLY C ONVERTIBLE C UMULATIVE P ARTICIPATING P REFERENCE S HARES (ROCCPPS) AN D U NSECURED NON CONVERTIBLE D EBENTURES WAS USED BY THE COMPANY IN CONNECTION WITH THE EXTENSION OF THE UNDERTAKING . WHILE INVITING OUR ATTEN TION TO THE PROVISIONS OF SECTION 35D, HE HAS SUBMITTED THAT ANY EXPENDITURE INCURRED BY THE INDIAN COMPANY AFTER COMMENCEMENT OF ITS BUSINESS IN CONNECTION WITH THE EXTENSION OF ITS UNDERTAKING OR IN CONNECTION WITH SETTING UP OF A NEW UNIT IS LIABLE AS A DEDUCTION. HE HAS CLAIMED THAT IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION FOR A.Y. 2009 - 10, THE ASSESSEE HAS CLAIMED 1/5 TH OF THE TOTAL EXPENDITURE OF RS. 43,22,000/ - ON ACCOUNT OF INCREASE IN AUTHORIZED SHARE CAPITAL AMOUNTING TO RS. 8,64,40 0/ - . HE HAS RELIED UPON THE DECISION OF THE CO - ORDINATE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 26 CHIRANJEEVI WIND ENERGY VS. ACIT IN ITA NO.342/MDS/2013 VIDE ORDER DATED 21.10.13 , WHEREIN , IN RELATION TO THE ISSUE OF INCREASE IN SHARE CAPITAL B Y WAY OF ISSUING EQUITY SHARES BY PRIVATE PLACEMENTS FOR EXTENSION OF PROJECT HAS COME INTO CONSIDERATION OF THE TRIBUNAL AND THE TRIBUNAL, AFTER DISCUSSION OF THE MATTER AT LENGTH, HAS HELD AS UNDER: 6. WE HAVE HEARD THE SUBMISSION S MADE BY THE REPRESENTATIVES OF BOTH THE SIDES. WE HAVE ALSO PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGMENTS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE. THE PROVISIONS OF SECTION 35D PROVIDES FOR AMORTIZATION OF CERT AIN PRELIMINARY EXPENSES WHICH ARE INCURRED BEFORE COMMENCEMENT OF THE BUSINESS OR INCURRED AFTER THE COMMENCEMENT OF BUSINESS IN CONNECTION WITH THE EXTENSION OF UNDERTAKING OR IN CONNECTION WITH SETTING UP OF NEW UNIT. THE LD. COUNSEL FOR THE ASSESSEE HA S GIVEN THE DETAILS OF THE EXPENDITURE INCURRED AFTER RAISING OF THE FUNDS THROUGH PRIVATE PLACEMENT OF EQUITY SHARES. THE COUNSEL HAS ALSO GIVEN THE DETAILS OF THE INCREASE IN BUSINESS ACTIVITIES OF THE ASSESSEE - COMPANY IN THE SUBSEQUENT YEARS TO SHOW THA T THERE HAS BEEN INCREASE IN BUSINESS OF WINDMILLS AND CONSEQUENT INCREASE IN HIGHER SALES TURNOVER. WE ARE OF THE CONSIDERED OPINION THAT WITH THE INCREASE IN CAPITAL BASE AFTER ISSUE OF ADDITIONAL EQUITY SHARES BY PRIVATE PLACEMENT, THE ASSESSEE - COMPAN Y INTENDS TO EXPAND ITS EXISTING PROJECT. THIS VIEW IS STRENGTHENED BY THE FACT THAT THE ASSESSEE HAS INVESTED SUBSTANTIAL AMOUNT IN PURCHASE OF MACHINERIES ETC., FURTHER, WITH THE INCREASE IN NUMBER OF WINDMILLS, THE SALES TURNOVER OF THE ASSESSEE HAS INC REASED ALMOST THREE FOLD FROM FINANCIAL YEAR 2008 - 09 TO FINANCIAL YEAR 2010 - 11. THEREFORE, THE EXPENDITURE INCURRED TOWARDS RAISING OF ADDITIONAL EQUITY SHARES BY PRIVATE PLACEMENT CAN BE ATTRIBUTED TO EXTENSION OF UNDERTAKING AND IS THUS ELIGIBLE FOR AMOR TIZATION UNDER THE PROVISIONS OF SECTION 35D. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF EID PARRY (INDIA) LTD., VS. DCIT (SUPRA) HAS HELD THAT WHERE EXPENDITURE HAS BEEN INCURRED IN CONNECTION WITH ISSUE OF SHARES WHICH ARE DIRECTLY RELATABLE TO EXPANSI ON TO CAPITAL BASE OF THE COMPANY FOR RAISING OF NEW PROJECTS, IT WOULD BE ALLOWABLE U/S. 35D. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. ASHOK LEYLAND LTD (SUPRA). 7. IN VIEW OF OUR ABOVE FINDINGS, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. THE ASSESSEE IS ENTITLED TO AMORTIZATION OF PRELIMINARY AND PRE - OPERATIVE EXPENSES AS WELL AS CONSULTANCY AND LEGAL CHARGES INCURRED TOWARDS PRIVATE PLACEMENT OF SHARES. 39 . THE LD. AR OF THE ASSESSEE HAS BROUGHT OUR AT TENTION TO PAGE 86 OF THE PAPER BOOK FILED WITH THE APPEAL PAPERS AND HAS CONTENDED THAT AS PER THE ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 27 BIFURCATION/DETAILS PROVIDED, THE EXPENSES WERE INCURRED TOWARDS STAMP DUTY AND ROC REGISTRATION FEES FOR INCREASE IN AUTHORIZED CAPITAL. THE SA ID EXPENDITU RE WAS IN THE SHAPE OF LEGAL/STATUTORY REGISTRATION FEES AND THUS QUALIFY FOR DEDUCTION EITHER UNDER CLAUSE(B) OR SUB CLAUSE (III) OF CLAUSE (C) OF SECTION 35D(2). HE HAS FURTHER SUBMITTED THAT AS PER CLAUSE (D) TO SECTION 35D(2) : SUCH OTHER ITEMS OF EXP ENDITURE NOT BEING EXPENDITURE ELIGIBLE FOR ANY ALLOWANCE ON DEDUCTION UNDER ANY OTHER PROVISIONS OF THE ACT IS ALSO ALLOWABLE AS DEDUCTION UNDER THIS SECTION . HE, THEREFORE, HAS CONTENDED THAT ANY EXPENDITURE WHICH HAS NOT BEEN SPECIFICALLY MENTION UNDE R THE OTHER CLAUSES OF SECTION 35D, WILL STILL BE ELIGIBLE FOR DEDUCTION, IF THE SAME HAS BEEN INCURRED IN RELATION TO COMMENCEMENT OF BUSINESS OR IN CONNECTION WITH THE EXPANSION OF THE INDUSTRIAL UNDERTAKING, IF OTHERWISE NOT ELIGIBLE FOR ANY ALLOWANCE O R DEDUCTION UNDER ANY OTHER PROVISIONS OF THE ACT. RELIANCE IN THIS RESPECT CAN ALSO BE PLACED ON THE DECISIONS OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. M/S. ASHOK LEYLAND LTD. TAX CASE APPEAL NO.1253, 1254 & 1255 OF 2005 DECIDED ON 20.06 .2012. WE FIND THAT THERE IS NO DISPUTE ON THE POINT THAT THE AUTHORIZED SHARE CAPITAL WAS RAISED BY THE ASSESSEE IN CONNECTION WITH THE EXTENSION OF THE UNDERTAKING . THE NATURE OF THE EXPENSES INDICATES THAT THE SAME WERE IN THE SHAPE OF STAMP DUTY AND RE GISTRATION CHARGES. THE CUMULATIVE READING OF THE ENTIRE PROVISIONS OF SECTION 35D WOULD REVEAL THAT THE NATURE OF EXPENSES IN THIS CASE IS SUCH THAT IT WOULD FALL WITHIN THE PURVIEW OF RESIDUARY CLAUSE (D) OF SECTION 35D(2). IN THE CASE IN HAND, ADMITTE DLY, THE ASSESSEE HAD INCURRED THE EXPENDITURE FOR RAISING OF SHARE CAPITAL FOR THE PURPOSE OF EXPANSION OF BUSINESS. IN VIEW OF THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. CHIRANJEEVI WIND ENERGY VS. ACIT (SUPRA) AND ALSO I N VIEW OF OUR OBSERVATIONS MADE ABOVE, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE AMORTIZATION OF THE SAID EXPENSES. THIS GROUND OF APPEAL IS THEREFORE ALLOWED. ITA NO.5904 7 & 6244/M /2012 M/S. WEST GUJARAT EXPRESSWAY LTD. 28 GROUND NO.4 4 0 . GROUND NO.4 OF THE APPEAL IS IN RESPECT OF CHARGING OF INTEREST UNDER SEC TION 234B OF THE ACT WHICH IS CONSEQUENTIAL IN NATURE. THE AO THEREFORE IS DIRECTED TO GIVE CONSEQUENTIAL RELIEF, IF ANY, TO THE ASSESSEE IN THIS RESPECT. 4 1 . IN VIEW OF OUR OBSERVATIONS MADE ABOVE, T HE APPEAL OF THE ASSESSE IS HEREBY ALLOWED, WHEREAS THE APPEAL OF THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.04. 201 5 . SD/ - SD/ - ( B.R. BASKARAN ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEM BER MUMBAI, DATED: 15.04.2015 . * KISHORE , SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.