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It is case of the assessee that the expenditure incurred is in revenue nature and the same has to be allowed over a period 17/7 years as the case may be. In the case under consideration, the expenditure incurred by the assessee on BOT Project did bring some kind of an enduring benefit to the assessee; however, the said expenditure did not bring into existence any capital asset for the assessee. The asset which was created belongs to the Government and the assessee derived only an enduring business advantage by spending the amount. The expenditure incurred by the assessee has to be looked upon as having been made for the purpose of conducting the business of the assessee. Since the asset created by the assessee by spending the said amounts did not belong to the assessee but the assessee got the business advantage by collecting the toll charges as revenue. Thus, the assessee got the benefit of revenue collection for the period of 17/7 years and hence, the expenditure incurred by the assessee towards BOT project should be looked upon as revenue expenditure. Our view is fortified by the decision of the Apex Court in the case of CIT vs. Guruvayoor Infrastructure Pvt. Ltd., Hyd.

Madras Auto Services Limited (supra) relied on by the learned counsel for the assessee. Once we held that the said expenditure is to be treated as revenue expenditure, consequently, the assessee is eligible to . amortize the expenditure relating to BOT Project for the period of 17/7 years. In view of the above, after considering the totality of facts and the circumstances of the case, we allow the claim of the assessee with regard to the amortization expenditure incurred on BOT Projects as revenue expenditure. The facts of the case are similar to the assessee's case and the above decision of the Hon'ble ITAT is squarely applicable to the present assessee.

21. It is also humbly submitted that in view of the above submissions and CBDT Circular No: 9/2014, the appeals filed by the Department may kindly be allowed."

Guruvayoor Infrastructure Pvt. Ltd., Hyd.

9.3 The ld. AR for the assessee also filed written submissions, which are as under:

"Whether on the facts and circumstances of the case the Ld. CIT(A) is justified in allowing depreciation @25% instead of amortizing the cost of BOT project over the concession period of BOT project which is in contravention to CBDT Circular No. 9/2014.

Guruvayoor Infrastructure Pvt. Ltd., Hyd.

2.24 In the current case, the amount incurred towards construction cost (including per-operative expenses) is for the purpose of obtaining the 'right to collect toll' provided by the Concession Agreement which enables the Assessee's to earn toll revenue being a new source of income. The Assessee has recorded the same as a capital asset/expense and the capitalization of the cost has not been disputed during the assessment proceedings nor at the first appellate leve l. 2.25 The Learned CIT(DR} in his submission has appreciated the fact that the BOT project did bring some kind of an enduring benefit to the Assessee. Further the Learned CIT(DR} has also appreciated that the cost so incurred by the Assessee shall be reimbursed by way of recovery of toll in accordance with the directions given by the Government. Recovery of toll on the said BOT project is per se a source of income. 2.26 Having said the above, the cost of construction (including pre-operative expenses) should be considered as a capital expenditure. Once the same is considered a capital expenditure, the same shall fall outside the scope of section 37 of the Act as the said section clearly allows a deduction for an expenditure not being, inter alia, capital expenditure.