February 2014
DCIT vs. Swarna Tollway Pvt. Ltd. In the Income Tax Appellate Tribunal Hyderabad Bench ‘A’, Hyderabad Before Chandra Poojari, (A. M.) and Asha Vijayaraghavan, (J. M.) ITA No. 1184 to 1189/Hyd/2013 Asst. Years : 2005-06 to 2010-11. Decided on 16.01.2014 Counsel for Revenue/Assessee: P. Soma Sekhar Reddy/I. Rama Rao
By Jagdish D. Shah, Jagdish T. Punjabi, Chartered Accountants
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Facts: The assessee was awarded the contract by the NHAI for widening, rehabilitation and maintenance of the existing two-lane highway into a four-lane on BOT basis. The entire cost of construction of Rs. 714.61 crore was borne by the assessee. The assessee claimed depreciation for the years under appeal. The AO held that no ownership, leasehold or tenancy rights were ever vested with the assessee for the assets in question, i.e., roads, in respect of which it had claimed depreciation and, therefore, disallowed the depreciation claimed on the highways.
On appeal by the assessee, the CIT(A) observed that though the NHAI remained the legal owner of the site with full powers to hold, dispose of and deal with the site consistent with the provisions of the agreement, the assessee had been granted not merely possession but also right to enjoyment of the site and NHAI was obliged to defend this right and the assessee has the power to exclude others. In view thereof and relying on certain decisions he held that the assessee was entitled for depreciation. Against this, the Revenue went in appeal before the tribunal.
Held:
The tribunal referred to the decision of the Apex court in the case of Mysore Minerals Ltd. vs. CIT (239 ITR 775) wherein the meaning of word “owner” was explained. In the said case, the Court had allowed the assessee’s claim for depreciation where the title deeds were not executed and possession was given. Further, the tribunal referred to the case of CIT v. Podar Cement (P.) Ltd. (226 ITR 625) (S.C.) where the Court considered the meaning of the word “owner” in section 22 and held that the owner is a person, who is entitled to receive income from the property in his own right. Further, relying on the decision of the Apex Court in the case of R.B. Jodha Mal Kuthiala vs. CIT (82 ITR 570), the Allahabad High Court in the case of CIT vs. Noida Toll Bridge Co. Ltd. (213 Taxman 333) and of the Hyderabad tribunal in the case of M/s. PVR Industries Ltd. (ITA No. 1171, 1175/Hyd/07 and 1176, 1196/Hyd/08 dated 08-06- 2011), dismissed the appeal filed by the revenue.
