DCIT, Circle-16(3),, Hyderabad v. M/s Progressive Construction Ltd.,, Hyderabad

ITA 214/HYD/2014 | 2010-2011
Pronouncement Date: 07-11-2014 | Result: Dismissed

Appeal Details

RSA Number 21422514 RSA 2014
Assessee PAN AABCP2274M
Bench Hyderabad
Appeal Number ITA 214/HYD/2014
Duration Of Justice 8 month(s) 26 day(s)
Appellant DCIT, Circle-16(3),, Hyderabad
Respondent M/s Progressive Construction Ltd.,, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 07-11-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 07-11-2014
Assessment Year 2010-2011
Appeal Filed On 11-02-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN JUDICIAL MEMBER ITA. NO.214/HYD/2014 ASSESSMENT YEAR 2009-2010 DCIT CIRCLE 16(3) HYDERABAD. VS. M/S. PROGRESSIVE CONSTRUCTION LTD. HYDERABAD. PAN AABCP2274M (APPELLANT) (RESPONDENT) FOR REVENUE : MR. D. SUDHAKAR RAO FOR ASSESSEE : MR. V. RAGHAVENDRA RAO DATE OF HEARING : 08.10.2014 DATE OF PRONOUNCEMENT : 07.11.2014 ORDER PER B. RAMAKOTAIAH A.M. THIS IS REVENUE APPEAL AGAINST THE ORDER OF LD. CIT(A)-V HYDERABAD DATED 21.10.2013. REVENUE HAS R AISED 7 GROUNDS ON THE ISSUE OF ALLOWANCE OF DEPRECIATION O N ROADS/BRIDGES CONSTRUCTED BY ASSESSEE AS PART OF NA TIONAL HIGH-WAYS PROJECT. 2. BRIEFLY STATED ASSESSEE IS A COMPANY ENGAGED I N THE BUSINESS OF CIVIL CONSTRUCTION. IT HAS FILED RE TURN OF INCOME ADMITTING RS.13 81 67 090 UNDER NORMAL PROVISIONS A ND RS.33 33 33 295 UNDER SECTION 115JB. ASSESSEE HAS E NTERED INTO A CONSTRUCTION AGREEMENT (IN SHORT CA) WITH NATIONAL HIGHWAY AUTHORITY OF INDIA ( IN SHORT NHAI) TO CO NSTRUCT THE ROAD FROM KM 493 TO 524 AT PUNE-HYDERABAD SECTION ( NH-9) IN 2 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. THE STATE OF ANDHRA PRADESH. THE CA WAS ENTERED ON BUILT OPERATE AND TRANSFER (IN SHORT BOT) BASIS. ASSESS EE HAD INCURRED AN EXPENDITURE OF RS.214.12 CRORES ON CONS TRUCTION OF ROAD PROJECT. AFTER CLAIMING PART DEPRECIATION IN E ARLIER YEAR ASSESSEE HAS CLAIMED 25% DEPRECIATION ON THE WDV OF RS.208.66 CRORES AND 12.5% OF EXPENDITURE INCURRED OF RS.5.47 CRORES AFTER 30.09.2009. ASSESSEE CLAIMED DEPRECIAT ION ON THE REASON THAT RIGHT TO COLLECT TOLL IN CONSTRUCTION A GREEMENT IS AN INTANGIBLE ASSET UNDER SECTION 32(1)(II). 3. ASSESSING OFFICER DISALLOWED THE DEPRECIATION CLAIMED ON THE REASON THAT DEPRECIATION CANNOT BE A LLOWED ON ROADS AS THE OWNERSHIP ON THE ROAD IS NOT WITH THE ASSESSEE. MOREOVER RIGHT TO COLLECT TOLL IS NOT AN INTANGIBL E ASSET AS DEFINED UNDER SECTION 32(1)(II) SO ASSESSEE IS NOT ENTITLED FOR DEPRECIATION. A.O. ALSO TOOK OBJECTION THAT IN EARL IER A.Y. 2009- 10 ASSESSEE CLAIMED DEPRECIATION AT 10% TOWARDS BUI LDING AND THIS YEAR IT HAS CLAIMED 25% TOWARDS PLANT AND MACH INERY. SINCE THERE IS NO CONSISTENCY IN THE CLAIM A.O. DI SALLOWED THE ENTIRE DEPRECIATION AND RELIED ON VARIOUS CASE LAWS AS STATED IN ASSESSMENT ORDER. HE ALSO REFERRED TO VARIOUS TERM S OF AGREEMENT TO STATE THAT ASSESSEE IS NOT OWNER OF TH E ASSET AND THEREFORE NOT ENTITLED TO DEPRECIATION. 4. LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF ASSESSEE AND RELYING ON VARIOUS CASE LAW ALLOWED THE DEPRECI ATION STATING AS UNDER : 10. IN FACT IN LAST YEAR I.E. 2009-10 THE ASSE SSEE CLAIMED DEPRECIATION AND THE SAME ALLOWED BY ME BY APPLYING THE DECISION' OF THE ITAT IN THE CASE OF N YSE INFRASTRUCTURE PRIVATE LIMITED OF HYDERABAD BENCH ' B' IN ITA NO. 301/HYD/2009 DT 05-06-2009 FOR THE ASSESSMENT Y EAR 2005-06. THE DECISION OF THE DELHI HIGH COURT IN TH E CASE OF NOIDA TOLL BRIDGE (255 CTR 88) UPHELD THE DECISION OF THE 3 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. DELHI BENCH OF THE ITAT IN ITA NOS. 3211/DEL/2006 A ND 1983/DEL/2006 DT 19-12-2008 WHICH WAS FOLLOWED BY T HE HYDERABAD BENCH IN THE CASE OF NYSE INFRASTRUCTURE (P) LIMITED (SUPRA). 11. HOWEVER IN THIS YEAR THE ASSESSEE CLAIMED THE DEPRECIATION ON THE EXPENDITURE INCURRED FOR TH E CONSTRUCTION OF THE ROAD ON THE BASIS THAT IT HAD A CQUIRED AN INTANGIBLE ASSET AND THAT THEREFORE IT IS ENTITLED TO THE DEPRECIATION U/S. 32(1)(II) OF THE IT ACT RATHER TH AN UNDER 32(1)(I) OF THE IT ACT. THE LEARNED COUNSEL POINTED OUT IN HIS WRITTEN SUBMISSIONS THAT THE CLAIM OF THE ASSESSEE IS JUSTIFIED U/S 32(1)(II). HE SAYS THAT ARTICLE 2.8(A ) HAS TO BE READ WITH CLAUSE 4.1 OF THE CONCESSION AGREEMENT. ACCORDING TO THAT ARTICLE THE ASSESSEE-COMPANY WAS ENTITLED TO COLLECT TOLL CHARGES. ARTICLE 2.8(A) PROVIDES FO R THIS RIGHT. ACCORDING TO ARTICLE 2.8(A) 'THE CONCESSIORIAIRE SHALL HAVE THE RIGHT TO USE OF THE PROJECT SITE IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT.' ARTICLE 2.8(A) R.W.S ARTICLE 4.1 OF THE AGREEMENT CONFERS ON THE ASSESSEE THE RIGHT TO COLL ECT TOLL CHARGES. THE PERIOD SPECIFIED FOR COLLECTION OF TOL L CHARGES IS 11 YEARS. IN SO FAR AS THE FINDINGS OF THE AO THAT THE ASSET IS NOT ENTITLED TO DEPRECIATION ON THE GROUND THAT THE ROAD IS NEITHER A BUILDING NOR THE ASSESSEE ITS OWNER THE SAME HAVE BEEN CONSIDERED IN APPEAL IN MY ORDER FOR THE ASSES SMENT YEAR 2009-10. IT HAS BEEN HELD THAT THE ASSESSEE IS ENTITLED TO DEPRECIATION AS CLAIMED. IN THIS YEAR THE ASSES SEE HAS AS STATED ABOVE MADE THE CLAIM THAT IT HAS ACQUIRED A N INTANGIBLE ASSET AND DEPRECIATION IS TO BE ALLOWED U/S 32(1)(II) OF THE IT ACT. THE DEPRECIATION ALLOWABLE ON THE INTANGIBLE ASSET IS @ 25% ON THE COST OF THE ASSET / WDV. THE AO HAS REJECTED THIS CLAIM ON THE FOLLOWING GROUNDS . I. THE RIGHT OVER THE ASSET IS NOT LIKE TECHNICAL KNOW HOW LICENCE COPY RIGHT ETC. THE ASSET IS CLEARLY TAN GIBLE. II. ITS OWNERSHIP IS NOT WITH THE ASSESSEE III. TILL LAST YEAR THE ASSESSEE WAS CLAIMING 10% DEPRECIATION AND SUDDENLY FOR THIS YEAR HAS TAKEN A STAND THAT THE SAME IS PLANT AND MACHINERY. IV. THERE IS NO CONSISTENCY IN THE CLAIM. 12. . . . . . . . . . . . . . .. . . 13. IT IS BROUGHT TO MY NOTICE THAT IN THIS YEAR THE ASSESSEE HAS CATEGORIZED THE 'ROAD (BOT)' OF THE EA RLIER YEAR AS 'INTANGIBLE ASSET CARRIAGE WAYS'. THE ANNUAL REP ORT REFERS TO THE CHANGED CATEGORIZATION AND IT IS STAT ED THEREIN UNDER THE CAPTION FIXED ASSETS AS UNDER: 'THE COMPANY HAS EXECUTED A ROAD PROJECT NAMELY 'FO UR LANING OF PUNE - HYDERABAD SECTION OF NH-9 FROM KM 493 TO 4 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. KM 524 ON BUILD OPERATE AND TRANSFER (BOT) BASIS. REVENUE FROM THE PROJECT IS BEING GENERATED THROUGH TOLL COLLECTION. FURTHER ENTIRE EXPENDITURE ON THIS PROJECT UP TO THE BALANCE SHEET DATE AMOUNTING TO RS. 224.36 CRORES (PREVIOUS YEAR RS. 217.88 CRORES) WAS CAPITALIZED AS CARRIAGE WAY INTANGIBLE ASSET AND AMORTIZED OVER THE PERIOD OF THE TOLL COLLECTION RIGHT ON INCREASING CHARGE METHOD (IN PR OPORTION TO THE EXPECTED ECONOMIC BENEFIT FROM THE SAID INTANGI BLE ASSET OVER THE BOT PERIOD). 14. ON A TOTAL CONSIDERATION OF THE TERMS OF THE CA THE TREATMENT IN AUDITED ACCOUNTED AND ON GOING THR OUGH THE ACCOUNTS AND DECISIONS OF THE SEVERAL BENCHES OF TH E ITAT COPIES OF WHICH HAVE BEEN FILED I AM INCLINED TO A GREE WITH THE LEARNED COUNSEL. FIRSTLY IT IS NOT THE CLAIM O F THE ASSESSEE THAT IT IS PLANT & MACHINERY WHICH COMES ONLY U/S 32(I)(I) AND NOT U/S 32(I)(II). THE JURISDICTIONAL BENCH HAS MADE THE FOLLOWING OBSERVATIONS IN THE OPERATIVE PA RA OF THEIR ORDER IN THE CASE OF NYSE INFRASTRUCTURE (P) LIMITED (SUPRA). 'IN THE PRESENT CASE THERE CAN BE ARGUMENT THAT TH E ASSET IS NOT PUT TO USE BY THE ASSESSEE FOR ITS BUSINESS WHICH IS OF CONSTRUCTION. WELL IF THERE IS NO USAGE OF THE ASSET ONE CANNOT DENY THAT THE ASSET IS CERTAINLY BEING EXPLOITED BY THE ASSESSEE TO EARN INCOME THEREFORE IF THE RECEIPT GENERATED FROM THE EXPLOITATION OF T HE ASSET IS OF REVENUE NATURE THEN INCOME EMBEDDED IN SUCH RECEIPT HAS TO BE TAXED ON NET BASIS ONLY. 15. ALTHOUGH THE OBSERVATION WAS IN CONNECTION WITH THE CLAIM OF DEPRECIATION APPLICABLE TO THE BU ILDING AND ACCEPTED BY THE !TAT THE REASONING IS WELL APPLICA BLE TO THE CLAIM OF DEPRECIATION U/S. 32(I)(II). IN THE INSTAN T CASE THE ASSESSEE HAD ACQUIRED THE RIGHT OF EXPLOITATION BY CONSTRUCTING THE ROAD WITH ITS OWN MONIES. BY REASO N OF THIS CONNECTION THE ASSESSEE ACQUIRED THE RIGHT TO EXPL OIT THE ASSET I.E. ROAD FOR A PERIOD OF AN 11 YEARS. THE R IGHT TO EXPLOIT IS IN THE NATURE OF A LICENCE GRANTED BY TH E OWNER OF THE ASSET WHICH IS ADMITTEDLY THE NHAI OR IT IS IN THE NATURE OF A BUSINESS RIGHT OR A COMMERCIAL RIGHT ACQUIRED BY INCURRING THE EXPENDITURE. THEREFORE THE ASSET DEFI NITELY IS AN INTANGIBLE ASSET. THE AO HAS ERRED IN OBSERVING THAT IT IS A TANGIBLE ASSET. THE TANGIBLE ASSET HERE IS THE RO AD CONSTRUCTED BY THE ASSESSEE WITH ITS FUNDS. THE TAN GIBLE ASSET IS THE RIGHT J LICENCE GRANTED BY THE OWNER I.E. NHAI TO COLLECT TOLL FOR THE PERIOD OF 11 YEARS WHICH IS IN CONSIDERATION OF THE CONSTRUCTION OF THE ROAD WITH THE FUNDS OF THE ASSESSEE THE OWNER OF THE LICENCE OR THE BU SINESS OR COMMERCIAL RIGHT FOR THE PERIOD THAT IT LASTS IS NO NE OTHER THAN THE ASSESSEE. IN FACT THAT THE LIMITED RIGHTS FOR A PERIOD ENTITLE SUCH OWNER OF LIMITED RIGHTS TO DEPRECIATION IS VERY WELL STATED BY THE HON'BLE SUPREME COURT IN THE CAS E OF MYSORE MINERALS LIMITED VS CIT (239 ITR 77). THE CA SE LAW RELIED ON BY THE INCOME TAX OFFICER RELATED TO THE PERIOD 5 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. WHEN THE INTANGIBLE ASSET WAS NOT IN THE IT ACT. TH E PROVISIONS OF SEC 32(1)(II) HAVE COME INTO EXISTENCE ONLY FROM 01.04.1999. THE SAME OBSERVATION APPLIES TO THE CAS E LAW CITED BY THE ASSESSEE BECAUSE THEY WERE RENDERED FO R A PERIOD BEFORE THE CONCEPT OF INTANGIBLE ASSETS WAS P UT INTO THE STATUTE. THEY ARE RELEVANT NO DOUBT FOR THE PRI NCIPLE THAT FOR BEING THE OWNER ONE MUST EXERCISE CONTROL OVER THE PROPERTY AND HAVE DOMINION OVER IT IN ONE'S OWN RIGH T. IF WE CONSTRUE THE RIGHT OF EXPLOITATION AS THE PROPERTY THEN THESE DECISIONS MAY HAVE RELEVANCE. BUT THERE IS NO NEED TO GO INTO THESE DECISIONS EITHER FOR OR AGAINST BECAUSE THE CONCEPT OF SEC 32(1)(II) HAS BEEN PUT ON STATUTE BOOK LATER AND IT CAN BE CONSIDERED INDEPENDENTLY. THE LEARNED COUNSEL HA S PLACED RELIANCE ON FOUR DECISIONS OF THE BENCHES OF THE ITAT PUNE AND INDORE AS ABOVE. THE COPIES OF THE ORDERS HAVE BEEN FILED. THE FACTS IN ALL THESE CASES ARE VERY S IMILAR TO THE FACTS OF THE ASSESSEE'S CASE. IN THE CASE OF ASHOKA INFO (P) LIMITED VS ACIT (SUPRA) THE QUESTION WAS WHETHER T HE LICENCE GRANTED BY THE MAHARASHTRA GOVERNMENT FOR COLLECTION OF TOLL ON AHMEDNAGAR - KARMALA ROAD WHI CH WAS CONSTRUCTED AND MAINTAINED BY THE ASSESSEE THERE ON BUILD OPERATE AND TRANSFER (BOT) BASIS IN TERMS OF THE AG REEMENT WITH THE MAHARASHTRA GOVERNMENT FOR A FIXED PERIOD OF 16 YEARS AND 9 MONTHS IS AN INTANGIBLE ASSET SO AS TO ALLOW DEPRECIATION AS DESCRIBED UNDER CLAUSE 32(1)(II) OF THE IT ACT. THE HON'BLE PUNE BENCH IN THAT CASE HELD THAT THE ASSESSEE THERE WAS ENTITLED TO DEPRECIATION U/S.32(1 )(II) OF THE IT ACT. THEY FOLLOWED THE DECISION OF THE CO-OR DINATE BENCH IN THE CASE OF RELIANCE PORTS & TERMINALS LIM ITED (ITA NOS. 1743 1744 & 1745/MUM/2007 DT. 26.11.2007). IN THE CASE OF M/S ASHOKA INFRASTRUCTURE LIMITED THE FACT S ARE SIMILAR WHERE THE CONCESSION AGREEMENT WAS ENTERED INTO ON BOT BASIS AND THE LICENCE WAS GRANTED TO COLLECT TOLL. IN THAT CASE THE HON'BLE BENCH FOLLOWED THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOKA INFRAWAYS (P) LIMITED VS ACIT IN ITA NOS. 185 & 186/PN/2012 DT 29- 04-2013 WHICH IN TURN CONSIDERED SEVERAL OTHER SIMILAR CASES BY DIFFERENT BENCHES OF THE TRIBUNAL AND HELD THAT THE RIGHT TO COLLECT TOLL IS AN INTANGIBLE ASSET AND ELI GIBLE FOR DEPRECIATION U/S 32(1)(II) OF THE IT ACT. THE LEARNED CO UNSEL HAS ALSO RELIED ON THE DECISION OF THE JURISDICTIONAL HIG H COURT OF ANDHRA PRADESH IN THE CASE OF STATE OF ANDHRA PRADESH VS INCOME TAX OFFICER (169 ITR 564 571-2). IN SUPPORT OF HIS SUBMISSION WHERE A DECISION OF THE JURISDICTIONAL BENCH OR THE COURT IS NOT AVAILABLE A DECIS ION FAVOURABLE TO THE ASSESSEE OF THE OTHER BENCHES OR O THER COURTS MUST BE FOLLOWED IN CASE OF ANY CONFLICT BETWEE N THE DECISIONS OF THE NON-JURISDICTIONAL BENCHES OF THE TRI BUNAL OR THE NON-JURISDICTIONAL HIGH COURTS. 16. HAVING REGARD TO THE SEVERAL BENCHES OF THE HON'BLE TRIBUNAL ON SIMILAR FACTS I HOLD THAT THE RIGHT TO COLLECT TOLL FEE GRANTED TO THE ASSESSEE IN CONSIDERAT ION OF CONSTRUCTING ROAD FOR THE NHAI IS IN THE NATURE OF LICENC E OR BUSINESS RIGHT OR COMMERCIAL ASSET AND THEREFORE AN INTANGIBLE ASSET COMING U/S 32(1)(II) OF THE IT ACT. THE 6 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. ASSESSEE IS THEREFORE ENTITLED TO DEPRECIATION ON THE COST INCURRED TO ACQUIRE THE RIGHT TO COLLECT TOLL FOR 11 YEA RS. 17. AS REGARDS THE PRINCIPLE OF CONSISTENCY IT IS VERY WELL-KNOWN THAT THE PRINCIPLE OF RESJUDICATA IS NOT APPLICABLE IN INCOME TAX PROCEEDINGS. FURTHER IT IS NO T AS IF THE ASSESSEE HAS BEEN CONTINUOUSLY CLAIMING DEPRECIATION U/S. 32(1)(I) OF THE I.T.ACT. THE DEPRECIATION WAS CLAIMED IN THE PREVIOUS YEAR THAT TOO FOR THE PERIOD OF USER F OR A PERIOD OF LESS THAN SIX MONTHS. THEREFORE IT IS NOT CORRECT O R FAIR TO PIN THE ASSESSEE DOWN TO THE PRINCIPLE OF CONSISTENCY WHEN THE FACTS AND CASE LAW SUPPORT THE STAND OF THE ASSESSEE IN THIS YEAR. ACCORDINGLY GROUND NOS. 2A 2B AND 2C ARE ALLOWED IN FAVOUR OF THE ASSESSEE AND I DIRECT THE AO T O ALLOW THE DEPRECIATION CLAIM OF RS. 52 84 84 830/-. 5. AFTER CONSIDERING THE RIVAL CONTENTIONS WE DO NOT SEE ANY MERIT IN REVENUE GROUNDS. LEARNED D.R. VEHE MENTLY SUPPORTED THAT DEPRECIATION CANNOT BE ALLOWED AND R ELIED ON THE BOARD CIRCULAR NO.9 OF 2014 DATED 23.04.2014. A S SEEN FROM THE ABOVE CIRCULAR ISSUED RECENTLY THE BOARD IS AWARE THAT THERE WERE DISPUTES AS TO WHETHER THE EXPENDIT URE INCURRED ON DEVELOPMENT AND CONSTRUCTION OF INFRAST RUCTURAL FACILITIES LIKE ROADS/HIGH WAYS ON BOT BASIS WITH R IGHT TO COLLECT TOLL IS ENTITLED FOR DEDUCTION UNDER SECTI ON 32(1)(II) OR THE SAME CAN BE AMORTIZED BY TREATING IT AS AN ALLO WABLE BUSINESS EXPENDITURE UNDER RELEVANT PROVISIONS OF T HE I.T. ACT. THE CIRCULAR WENT ON TO CLARIFY THAT THE AMOUNT CAN BE AMORTIZED OVER THE PERIOD OF TOLL CONSTRUCTION CONC ESSIONAIRE AGREEMENT. AS CAN BE SEEN FROM THE CIRCULAR THE BO ARD IN FACT HAS ACCEPTED THAT THE COST INCURRED TOWARDS DEVELOP MENT OF ROAD/HIGHWAYS IS REVENUE EXPENDITURE AND RELYING ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF MA DRAS INDUSTRIAL INVESTMENT CORPORATION LTD. VS. CIT 225 ITR 802 ALLOWED SPREADING OVER THE LIABILITIES OVER NUMBER OF YEARS. SINCE THE AMOUNT IS ALLOWABLE AS AN EXPENDITURE THA T TOO AS REVENUE EXPENDITURE THE BOARD CIRCULAR IS IN FACT ADVANTAGEOUS TO THE ASSESSEE WHO ARE IN DEVELOPMENT OF 7 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. INFRASTRUCTURE FACILITIES BUT NOT OWNING THE PROPER TY WHICH WAS CONSTRUCTED. IN THIS CASE ASSESSEE HAS INITIALLY T REATED THE ENTIRE COST AS BUILDING AND CLAIMED 10% DEPRECIATIO N IN A.Y. 2009-10. THIS CLAIM IS IN FACT JUSTIFIED ALSO. THE COORDINATE BENCH IN THE CASE OF PBR INDUSTRIES LTD. ITA.NO.11 71/H/07 1175/H/07 1176/H/08 AND ITA.NO.1196/H/08 DATED 08.06.2011 ALLOWED SUCH EXPENDITURE INCURRED ON BOT PROJECT AS REVENUE EXPENDITURE AMORTIZED OVER A PERIOD OF C ONCESSION. HOWEVER THEY ARE ALSO EQUALLY GOOD NUMBER OF CASES AS RELIED BY LD. CIT(A) THAT THE SAME CANNOT BE CONSIDERED A S AN INTANGIBLE ASSET. THE COORDINATE BENCHES IN THE CAS E OF NYSE INFRASTRUCTURE P. LTD. VS. DCIT ITA.NO.301/H/2009 DATED 05.06.2009 AND OTHER CASES ON SIMILAR FACTS ALLOWED DEPRECIATION HOLDING THAT ENTIRE ASSET IS INTANGIBL E ASSET. SINCE THE LD. CIT(A) ALLOWED DEPRECIATION AS CLAIMED BY A SSESSEE WHICH IS ALSO SUPPORTED BY VARIOUS CASE LAW WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AS THE ENTIRE COST INCURRED ON THE PROJECT IS TO BE ALLOWED AS DE DUCTION TO ASSESSEE EITHER AS AMORTIZED REVENUE EXPENDITURE OR AS DEPRECIATION. SINCE ASSESSEE CHOOSE TO CLAIM DEPREC IATION WE DO NOT SEE ANY REASON TO DISALLOW THE SAME. ACCORDI NGLY THERE IS NO MERIT IN REVENUE GROUNDS. 6. IN THE RESULT APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.11.2014. SD/- SD/- (ASHA VIJAYARAGHAVAN) (B.RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD DATED 07 TH NOVEMBER 2015. VBP/- 8 ITA.NO.214/HYD/2014 M/S. PROGRESSIVE CONSTRUCTIONS LTD. HYDERABAD. COPY TO 1. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 16 (3) HYDERABAD. 2. M/S. PROGRESSIVE CONSTRUCTION LTD. 7 TH FLOOR RAGHAVA NORTH BLOCK RAGHAVA RATHNA TOWER CHIRAG ALI LANE HYDERABAD. 3. COMMISSIONER OF INCOME TAX (APPEALS)-V HYDERABA D. 4. COMMISSIONER OF INCOME TAX-IV HYDERABAD. 5. D.R. ITAT B BENCH HYDERABAD