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4. That the Ld. PCIT erred in not appreciating that the CBDT Circular, which was not applicable to the facts of the appellant's case and was also contrary to the law laid down in various decisions, could not be the basis to set-aside the assessment concluded vide order dated 31.12.2013 under section 143(3) of the Act.

5. That the Ld. PCIT erred in invoking revisionary proceedings under section 263 of the Act ignoring the law laid down by the Hon'ble High Court which is binding on lower authorities in respect of eligibility of the assessee to claim depreciation under section 32(1) of the Act on expenditure incurred towards ITA no. 2813/Del/2016 (AY 20011-12) acquired/developed under the Build-Op erate-Transfer Scheme ("BOT Scheme").

The assessee had claimed depreciation of Rs 112,29,74,447/- during the A.Y 2011-12 on fixed assets of Rs 1560,48,17,189/- @ 50 % of the eligible depreciation rates, as the assets were used for less than 180 days which was allowed in the assessment. As the assets were developed under BOT scheme the assessee was not eligible to claim of depreciation as it was not the owner of the assets. In BOT arrangement for development of airport metro project the possession of land was handed over to the assessee by DMRC( notified authority for the purpose of construction of the project) without any actual transfer of ownership and the assessee had only a right to develop and maintain the assets. The design & construction of basic civil structure for the project was done by DMRC and the same was made available to the concessionaire progressively for design, supply, installation, commissioning and operation of system and related work, The assessee enjoyed the benefits arising from the use of asset through collection of fares for a specified period without having actual ownership over such assets. Therefore, the rights in the land remained vested with the Government/its agency(DMRC). Thus, as the assessee did not hold any rights in the project except recovery of fares to recoup the expenditure incurred, it cannot be treated as owner of the property, either wholly or partially for purpose of allowability of depreciation under Section 32(l)(iii) of the Act. The provisions of the Act do not allow claim of depreciation ITA no. 2813/Del/2016 (AY 20011-12) on the assets due to non-fulfillment of ownership criteria in BOT cases.

4. As the assessee had incurred expenditure on a project for development of Metro railways it was entitled to recover cost incurred towards development of such facility (comprising of construction cost and other pre-operative expenses) during the construction period. Further, expenditure incurred by the assessee on such BOT projects had brought an enduring benefit in the form of right to collect the fares during the period of the agreement. The Supreme Court in the case of Madras Industrial Investment Corporation Ltd vs CIT 225 ITR 802, allowed spreading over of liability over a number of years on the ground that there was a continuing benefit to the company over a period, Therefore, analogously, expenditure incurred on an infrastructure project for development of Metro rail under BOT agreement may be treated as having been made/incurred for the purpose of business or profession of the assessee and same may be allowed to be spread during the tenure of the concessionaire agreement If the value of the fixed assets were to be amortized evenly over a period of 30 years the amount to be amortized would be Rs 52,01,60,572/- only for each year. Therefore, by allowing depreciation to the assessee the assessee has been allowed excessive deduction of Rs 60,28,13,875/-. To the extent the order passed by the A.O is found to be erroneous and prejudicial to the interests of revenue.

12. Ld. DR submitted that Hon'ble Supreme Court in the case of Madras Industrial Investment Corporation Ltd (supra) has allowed spreading over of the liability over the concession period, which accounting method has been adopted by the assessee in its books of accounts. She further submitted that under such circumstances that expenditure incurred on the infrastructure project under BOT scheme must be spread over during the period of concessionaire agreement. She placed reliance upon the decision of Bombay High Court in the case of North Karnataka express highway Ltd in ITA No. 499/2012, wherein the Hon'ble Bombay High Court held that depreciation is not allowable on toll road constructed under BOT scheme since the toll road belonged to the government and the company taxpayer was not the owner of the said road.