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1 - 6 of 6 (0.96 seconds)The Income Tax Act, 1961
Section 32 in The Income Tax Act, 1961 [Entire Act]
North Karnataka Expressway Ltd. vs Commissioner Of Income Tax -10, Mumbai on 5 May, 2015
Further in the case of North Karnataka Expressway Ltd.
vs. CIT (supra) and in the case of L&T Infrastructure Development Projects
Ltd. (supra), on which the learned D.R. has placed reliance, the project was
of BOT nature whereas in the present case before us, the contract is of
DBFOT nature having much wider scope than BOT. As noted in foregoing
paragraph (E) of this order, the scope of DBFOT contract, in as much as it
also includes Design and Finance, is much wider than BOT contract.
Moreover, as noted in foregoing paragraph (B) of this order, the project is
deemed to be acquired and owned by the assessee. Further, as noted in
paragraph (E.1) of this order, possession of the project by the assessee is
also established. In view of these distinguishable facts and circumstances,
we are of the opinion that the precedents relied upon by the learned D.R. in
his written submissions have no application or relevance for the case before
us. What the Assessing Officer has failed to appreciate, is that the asset on
which the assessee has claimed depreciation, is "Right to Collect Toll", which
is an intangible asset. By necessary implication, it is impossible for
intangible asset to be "physically owned" in the sense in which the
Assessing Officer expects. When the assessee has deemed ownership of
I.T.A. No.131/Lkw/2024
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C.O.No.14/Lkw/2024
physical assets corresponding to the 'intangible asset' as is the case here; it
meets the requirement for eligibility for depreciation, as far as requirement
of ownership is concerned. It is a settled position of law; that law does not
require one to perform the impossible. In situations like this, which we
faced with law is to be interpreted in a manner that reasonable compliance
is to be treated as adequate. What strengthens the case of the assessee, is
that in addition to deemed ownership, the assessee also has acquisition and
physical possession of the physical assets corresponding to the intangible
asset (Right to Collect Toll). Thus, the assessee meets the requirement of
law for claim of depreciation. In view of the foregoing discussion, therefore,
we hold that the claim of the assessee for depreciation, while foregoing
amortization, is in accordance with law in the facts and circumstances of the
present case before us. Therefore, we decline to interfere with the
impugned order of learned CIT(A) on this issue and accordingly, the
grounds taken in appeal filed by Revenue are hereby dismissed. In effect,
appeal filed by Revenue is dismissed.
Union Of India And Another vs Radhu And Others on 24 November, 2021
(c) The claim of the assessee for allowing depreciation on the
ground of 'principal of consistency' and sustained by the CIT(A)
is not acceptable as the issue of claim of depreciation was not
examined in the case of assessee in earlier years in light of
CBDT circular dated 23.04.2014. This view finds support from
the following case laws: Union of India & Anr. Vs Radhu."
Ito (Exemptions), Dehradun vs Swami Omkarananad Sarswati Charitable ... on 30 May, 2018
(1) CBDT Instruction F.No.225/81/2022/ITA-II dated 11th May 2022
(2) CBDT Circular No.09/2014, dated 23rd April 2014
(3) Hon'ble Allahabad High Court order dated March 15, 2023 in
the case of CIT (Exemptions) vs. Swami Omkarananda
Saraswati Charitable Trust [2023] 150 taxmann.com 428
(Allahabad)
(4) ITAT Mumbai Bench order in the case of North Karnataka
Expressway Ltd. vs. ACIT (I.T.A. No.4160/Mum/2013, I.T.A.
No.4161/Mum/2013 and I.T.A. No.1230/Mum/2015, order
dated 20/09/2021)
(5) Copy of Panchnama in the case of APCO Infratech Pvt. Ltd.
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