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ITA no.3787 & 3788/Mum/2023 allowed 1/18thportion of the cost to be deferred revenue expenditure which works out to ₹ 56,50,60,320.

6. The learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee and following the decision of the Hon'ble Jurisdictional High Court in North Karnataka Expressway Ltd v/s CIT, reported in 372 ITR 145, and CIT v/s West Gujarat Expressway Ltd, reported in 82 taxmann.com 224, held that since the assessee is constructing a road on BOT basis on the government land, it is not the "owner" of the road and cannot claim depreciation on it. Further, by relying on the decision of the Hon'ble Madras High Court in L & T Infrastructure Development Projects Limited v/s ACIT, in TCA No. 868 to 870 of 2009, etc., the learned CIT(A) held that the toll road is also not an intangible asset. However, referring to the CBDT Circular No. 9 of 2014, the learned CIT(A) held that the cost is to be amortised evenly over the concession period. Being aggrieved, the assessee is in appeal before us.

ITA no.3787 & 3788/Mum/2023 construed as limited to things of the same kind as those specified. Therefore, it is the plea of the assessee that while interpreting the term "any other business or commercial rights of similar nature" in Explanation 3(b) to section 32(1)(ii) of the Act, the principle of ejusdem generisbe applied instead ofthe principle of noscitur a sociis.

21. In the present case, despite the grant of multiple opportunities, the assessee could not bring any decision of the Hon'ble Supreme Court or any other Hon'ble High Court which is contrary to the decision of the Hon'ble Madras High Court in L & T Infrastructure Development Projects Limited (supra) on the issue under consideration before us. We find that the decision of the Hon'ble Karnataka High Court in Bangalore International Airport Ltd. v/s DCIT, reported in [2023] 457 ITR 229 (Karn.), relied upon by the learned AR, has been rendered in a different factual matrix as in that case the depreciation was claimed on expenditure incurred towards legal, technical, and management fees for acquiring certain rights from the Ministry of Civil Aviation, Government of India. Therefore, we are of the considered view that the said decision is factually distinguishable and is not applicable to the present case. Thus, we are faced with a situation where the decision of the Hon'ble Madras High Court in L & T Infrastructure Development Projects Limited (supra) is the sole decision by any Hon'ble High Court in the country on the issue as to whether depreciation is allowable on the right to collect toll on the roads developed by the assessee on BOT basis by considering the same as an intangible asset. We find that the Hon'ble Jurisdictional High Court inCIT v. Smt. Godavaridevi Saraf, Page | 16 Hazaribagh Ranchi Expressway Ltd.

23. Despite placing reliance upon thedecision of the Third Member Bench of the Tribunal in Kenel Oil and Exports Industries Ltd (supra), the learned AR could not bring any material on record to show as to which relevant statutory provision or rule was not considered or as to which previous binding precedent was not followed by the Hon'ble Madras High Court inL & T Infrastructure Development Projects Limited (supra). The mere submission of the learned AR was that the Hon'ble Madras High Court inL & T Infrastructure Development Projects Limited (supra) interpreted the term "any other business or commercial rights of similar nature" in Explanation 3(b) to section 32(1)(ii) of the Act by applying the principle of noscitur a sociis instead of applying the principle of ejusdem generis as directed to be followed by the Hon'ble Supreme Court inSmifs Securities Ltd (supra) and Techno Shares and Stocks Ltd (supra). As noted by us in the foregoing paragraph, in both the decisions the issue before the Hon'ble Supreme Court was not similar to the present case, which was considered by the Hon'ble Madras High Court inL & T Infrastructure Development Projects Limited (supra). Therefore, we are of the considered view that reliance placed by the learned AR on the decision of the Third Member Bench of the Tribunal in Kenel Oil and Exports Industries Ltd (supra) is completely misplaced.

Page | 19 Hazaribagh Ranchi Expressway Ltd.

ITA no.3787 & 3788/Mum/2023

24. Therefore, in light of the detailed analysis of case law relied upon by both sides in the forgoing paragraphs, we are of the considered view that the decision of the Hon'ble Madras High Court inL & T Infrastructure Development Projects Limited (supra), being the sole decision by any Hon'ble High Court on the issue under consideration before us, is binding on us in the absence of any contrary decision by any other Hon'ble High Court including the Hon'ble Jurisdictional High Court. Further, the decision in L & T Infrastructure Development Projects Limited (supra) has been rendered by a forum higher in the judicial hierarchy as compared to the decision in DCIT v/s Progressive Constructions Ltd (supra)rendered by the Special Bench of the Tribunal on this issue. Therefore, we are of the considered view that the learned CIT(A) correctly denied the claim of depreciation by the assessee on the right to collect toll on the roads developed by it on a BOT basis by following the decision of the Hon'ble Madras High Court inL & T Infrastructure Development Projects Limited (supra). At the cost of repetition, the other aspect, i.e. claim of depreciation by treating the road as a tangible asset, has already been found to be covered against the assessee by the decisions of the Hon'ble Jurisdictional High Court. Therefore, we find no infirmity in the findings of the learned CIT(A) vide impugned order and the same is upheld. Further, we find that the benefit of amortisation for the period of the Concession Agreement granted by the AO and upheld by the CIT(A) is in consonance with Circular No. 9 of 2014, dated 23/04/2014 issued by the CBDT. Accordingly, the grounds raised by the assessee in its appeal for the assessment year 2013-14 are dismissed.