MUMBAI INTERNATIONAL AIRPORT P.LTD, MUMBAI v. DCIT 10(2)(2), MUMBAI

ITA 4382/MUM/2015 | 2012-2013
Pronouncement Date: 27-11-2017 | Result: Allowed

Appeal Details

RSA Number 438219914 RSA 2015
Assessee PAN AAECM6285C
Bench Mumbai
Appeal Number ITA 4382/MUM/2015
Duration Of Justice 2 year(s) 4 month(s) 10 day(s)
Appellant MUMBAI INTERNATIONAL AIRPORT P.LTD, MUMBAI
Respondent DCIT 10(2)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 27-11-2017
Assessment Year 2012-2013
Appeal Filed On 17-07-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI P K BANSAL VICE PRESIDENT & SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.4382/MUM/2015 ASSESSMENT YEAR : 2012-13 MUMBAI INTERNATIONAL AIRPORT P LTD. FINANCE DEPARTMENT 1 ST FLOOR TERMINAL 1B CHATRAPATI SHIVAJI INTERNATIONAL AIRPORT SANTACRUZ (E) MUMBAI 400 099 PAN : AAECM6285C VS. DY CIT 10(2)( 2) MUMBAI (APPELLANT) (RESPONDENT) ITA NO.4838/MUM/2015 ASSESSMENT YEAR: 2012-13 DY CIT RANGE 10(2) (2) MUMBAI VS. MUMBAI INTERNATIONAL AIRPORT P LTD. MUMBAI 400 099 PAN : AAECM6285C (APPELLANT) (RESPONDENT) FOR THE ASSESSEE : SHRI VIJAY MEHTA FOR THE REVENUE : SHRI RANJIT SINGH ARNEJA DATE OF HEARING : 1 4 . 0 9 .2017 DATE OF PRONOUNCEMENT : 27 . 11. 2017 O R D E R PER P K BANSAL VICE-PRESIDENT: THESE CROSS-APPEALS HAVE BEEN FILED AGAINST THE ORD ER OF THE CIT(A) DATED 12.06.2015 FOR A.Y. 2012-13. 2. ITA NO.4382/MUM/2015: THE ASSESSEE IN ITS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: MUMBAI INTERNATIONAL AIRPORT P LTD. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND THE LAW THE LD.CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF T HE PROVISION OF RS.5 84 70 574/- MADE TOWARDS LEAVE ENCASHMENT ON T HE BASIS OF AN ACTUARIAL VALUATION BY RELYING ON THE DECISION O F CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD. V. UNION OF INDIA (292 ITR 470). THE APPELLANT PRAYS THAT THE SAME MAY BE ALL OWED. THE ASSESSEE HAS ALSO MOVED AN APPLICATION DATED 1 2.09.2017 FOR ADMISSION OF THE ADDITIONAL GROUND WHICH READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE APPELLANT HAS ERRED BY OFFERING THE PASSENGER SERVI CE FEE SECURITY COMPONENT [PSF(SC)] OF ` .93 49 42 199/- AS TAXABLE INCOME DURING THE YEAR UNDER CONSIDERATION. THE AP PELLANT PRAYS THAT THE PSF(SC) IS NOT THE INCOME OF THE APPELLANT . HENCE THE SUO MOTO ADDITION ON THIS ACCOUNT MADE BY THE APPELLANT MAY PLEASE BE DELETED. 3. AT THE OUTSET IT WAS BROUGHT TO OUR NOTICE THAT SIMILAR ADDITIONAL GROUND HAS BEEN TAKEN UP BY THE ASSESSEE FOR A.YS. 2009-10 TO 2011-12 EXCEPT FOR THE CHANGE IN FIGURE AND BOTH THE PARTIE S AGREED THAT WHATEVER VIEW THIS TRIBUNAL HAS TAKEN IN THOSE ASSESSMENT YE ARS THE SAME VIEW MAY BE TAKEN FOR THE IMPUGNED ASSESSMENT YEAR ALSO. 4. WE FIND THAT THIS TRIBUNAL VIDE ITS ORDER DATED 13.11.2017 IN A.YS. 2009-10 TO 2011-12 IT HAS BEEN HELD AS UNDER: 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE GONE THROUGH THE CASE LAWS AS WERE REFERRED TO BEFORE US . WE NOTED THE FACTS RELATING TO THE SAID GROUND TAKEN BY THE ASSE SSEE AS ADDITIONAL GROUND BEFORE US. THE QUESTION BEFORE US WHETHER THE GROUND TAKEN BY THE ASSESSEE IS A LEGAL GROUND OR NOT. TH E ISSUE WHETHER MUMBAI INTERNATIONAL AIRPORT P LTD. 3 THE DISCLOSED PASSENGER SERVICE FEE SECURITY COMP ONENT [PSF (SC)] IS A INCOME OR NOT? IN OUR OPINION IT IS A LEGAL ISSUE AND AS PER THE DECISION OF HONBLE SUPREME COURT IN THE CA SE OF NATIONAL THERMAL POWER CORPORATION V. CIT (SUPRA) THE QUEST ION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD CAN BE RAISED BEFORE THE TRIBUNAL FOR THE FIRST TIME AND THE TRIBUNAL IS BOUND TO CONSIDER THE SAID GROUND TO ASSESS THE CORRECT TAX LIABILITY . IN THE CASE OF JUTE CORPORATION OF INDIA VS. CIT (SUPRA) THE HON BLE SUPREME COURT HAS HELD AS UNDER: AN APPELLATE AUTHORITY HAS ALL THE POWERS WHICH TH E ORIGINAL MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS IF ANY PRESCRIBED BY THE STATUTORY PROVISION. IN THE ABSENCE OF ANY STATUTORY PROVISI ONS THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MAT TER. THERE IS NO GOOD REASON TO JUSTIFY CURTAILMENT OF T HE POWER OF THE APPELLATE ASSISTANT COMMISSIONER IN ENTERTAI NING AN ADDITIONAL GROUND RAISED BY THE ASSESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY T HE INCOME-TAX OFFICER. IN VIEW OF THIS DECISION THERE IS NO CURTAILMENT OF THE POWER OF THE APPELLATE AUTHORITY IN ENTERTAINING THE ADDITIONAL GROUND. NOT ONLY THIS WE NOTED THAT THE BOMBAY HIGH COURT (FB) IN T HE CASE OF AHMEDABAD ELECTRICITY CO. LTD. VS. CIT (SUPRA) HAS OBSERVED THAT THE BASIC PURPOSE OF AN APPEAL IN INCOME TAX MATTER IS TO ASCERTAIN CORRECT TAX LIABILITY OF THE ASSESSEE IN ACCORDANCE WITH THE LAW. THEREFORE THE APPELLATE TRIBUNAL BEING THE APPELLA TE AUTHORITY IS BOUND TO CONSIDER THE PROCEEDINGS BEFORE IT AND THE MATTER ON RECORD FOR DETERMINING THE CORRECT TAX LIABILITY O F THE ASSESSEE. IT IS NOT DISPUTED THAT THE FACTS RELATING TO PASSENGER S ERVICE FEES SECURITY COMPONENT ARE ON RECORD FOR EACH OF THE AS SESSMENT YEARS. THEREFORE IT CANNOT BE SAID THAT THIS IS A CASE WH ERE FURTHER FACTS HAVE TO BE INVESTIGATED. THE ONLY QUESTION RAISED BY THE ASSESSEE IN ITS GROUNDS OF APPEAL IS WHETHER THE IMPUGNED RE CEIPT IS AN INCOME CHARGEABLE TO TAX OR NOT. THE LEARNED DR A LTHOUGH VEHEMENTLY CONTENDED THAT ADDITIONAL GROUND SHOULD NOT BE ADMITTED HAS NOT GIVEN ANY JUSTIFIABLE REASON FOR NOT ADMITTING THE SAME. IT IS A SETTLED LAW THAT THE ADDITIONAL GROU ND IF IT IS A LEGAL GROUND CAN BE TAKEN FOR THE FIRST TIME BEFORE THE A PPELLATE AUTHORITY. THEREFORE THE SUBMISSIONS MADE BY THE LEARNED DR THAT THE ASSESSEE HAS NOT RAISED THIS ISSUE BEFORE THE A SSESSING OFFICER OR THE CIT(A) DOES NOT HAVE ANY LEGS TO STAND. WE THEREFORE ADMIT THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE . MUMBAI INTERNATIONAL AIRPORT P LTD. 4 THUS THE TRIBUNAL ADMITTED THE ADDITIONAL GROUND A ND FURTHER HELD AS UNDER: 14 FROM THE FINDINGS OF THE TRIBUNAL IT IS APPARENT T HAT THE SAID AMOUNT IS NOT TAXABLE IN THE HANDS OF THE ASSESSEE AND THEREBY DIRECTED THE ASSESSING OFFICER TO RE-COMPUTE THE IN COME OF THE ASSESSEE WHILE HOLDING SO THIS TRIBUNAL ALSO GAVE L IBERTY TO THE ASSESSING OFFICER THAT NO PORTION OF AMOUNT COLLECT ED BY THE ASSESSEE ON ACCOUNT OF PSF-SC IS UTILIZED BY THE ASSESSEE FOR ITS OWN PURPOSES OR FOR ANY PURPOSES WHICH ARE NOT PERMITTED BY MOCA/OTHER COMPETENT AUTHORITIES. IN CASE A NY VIOLATION IS DONE BY THE ASSESSEE IN THIS REGARD THEN T HE ASSESSING OFFICER WILL BE AT HIS LIBERTY TO TREAT THE AMOUNT SO MISAPPROPRIATED AS INCOME OF THE ASSESSEE BUT TO THAT EXTENT ONLY. FURTHER IF ANY REFUND IS RECEIVED BY THE ASSESSEE ON ACCOUNT OF TDS DEDUCTED ON THIS COMPONENT I .E. ON PSF-SC THEN THE SAME SHALL ALSO BE DEPOSITED BY TH E ASSESSEE IN THE ESCROW ACCOUNT AS WAS FAIRLY AGREED BY T HE LEARNED COUNSEL DURING THE COURSE OF HEARING 15. WE HAVE NOTED THAT WHILE GIVING EFFECT TO THIS ORDER THE ASSESSING OFFICER AFTER EXAMINATION AS PER THE DIR ECTIONS GIVEN BY THE TRIBUNAL AND ULTIMATELY VIDE HIS ORDER DATED 04 .07.2017 DELETED THE WHOLE ADDITION MADE IN RESPECT OF PSF-S C AMOUNTING TO ` 1 32 58 59 023/- FOR AY.2008-09. SINCE THE FACTS IN VOLVED IN THE IMPUGNED YEARS UNDER CONSIDERATION ARE NOT DISPUTED WITH THE FACTS INVOLVED IN A.Y.2008-09 WHEREIN THE AO WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL FOUND THAT THE ASSESSEE HAS N OT UTILIZED ANY AMOUNT OF PSF-SC FOR ITS OWN PURPOSES OR FOR ANY PURPOSES WHICH ARE NOT PERMITTED BY MOCA/OTHER COMPETEN T AUTHORITIES W E THEREFORE RESPECTFULLY FOLLOWING THE DECISION O F THIS TRIBUNAL FOR A.Y. 2008-09 HOLD THAT THE SAID AMOUNT IS NOT TAXA BLE IN THE HANDS OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO RE-COMPUTE THE INCOME OF THE ASSESSEE. WE ALSO DIRECT THE ASSESSI NG OFFICER TO SEE THAT NO PORTION OF THE AMOUNT CALCULATED BY THE ASS ESSEE ON ACCOUNT OF PSF-SC IS UTILIZED BY THE ASSESSEE FOR I TS OWN PURPOSES OR FOR ANY PURPOSE WHICH ARE NOT PERMITTED BY MOCA/ OTHER COMPETENT AUTHORITIES. THE ASSESSING OFFICER IS FU RTHER DIRECTED THAT IN CASE HE FINDS THAT ANY VIOLATION IS DONE BY THE ASSESSEE IN THIS REGARD HE WILL BE AT HIS LIBERTY TO TREAT THE AMOUNT SO MISAPPROPRIATED AS INCOME OF THE ASSESSEE BUT TO TH AT EXTENT ONLY. FURTHER IF ANY REFUND IS RECEIVED BY THE ASSESSEE ON ACCOUNT OF MUMBAI INTERNATIONAL AIRPORT P LTD. 5 TDS DEDUCTED ON THIS COMPONENT I.E. ON PSF-SC THE SAME SHALL ALSO BE DEPOSITED BY THE ASSESSEE IN THE ESCROW ACC OUNT FAILING WHICH IT WOULD BE TREATED AS INCOME OF THE ASSESSEE TO THAT EXTENT ONLY. THUS THIS GROUND IS ALLOWED SUBJECT TO THES E DIRECTIONS IN EACH OF THE A.YS 2009-10 2010-11 AND 2011-12. FACTS AND CIRCUMSTANCES BEING THE SAME ON THE SAME REASONING AND DIRECTIONS WE ALLOW THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE. 5. THE ONLY ISSUE TAKEN UP BY THE ASSESSEE RELATES TO THE DISALLOWANCE OF THE PROVISIONS FOR LEAVE ENCASHMENT WHICH WAS MADE ON THE BASIS OF ACTUARIAL VALUATION. WE HAVE HEARD THE RIVAL SUBMI SSIONS AND CONSIDERED THE SAME CAREFULLY ALONG WITH THE ORDERS OF THE TAX AUT HORITIES BELOW. WE HAVE GONE THROUGH THE ORDER OF THIS TRIBUNAL DATED 30.1 1.2016 IN THE ASSESSEES OWN CASE FOR A.Y. 2008-09 IN ITA NO. 3232/MUM/2012 WHICH HAS BEEN FOLLOWED BY US IN THE ASSESSEES CASE FOR A.YS 2009 -10 & 2011-12 AS WELL. THE TRIBUNAL WHILE DEALING WITH IDENTICAL GROUND HA S HELD AS UNDER: 13.1. THE BRIEF FACTS OF THE CASE ARE THAT IN THE ASSESSMENT ORDER THE AO MADE ADDITION OF THE AFORESAID AMOUNT ON ACCOUNT OF PROVISION FOR LEAVE ENCASHMENT DEBITED T O THE PROFIT & LOSS ACCOUNT ON THE GROUND THAT THE DECISION OF CALCUTTA HIGH COURT IN THE CASE OF EXCEL INDUSTRIES VS UOI 2 92 ITR 470 (CAL) HAS BEEN STAYED BY THE HONBLE SUPREME COURT AND THEREFORE AS ON THAT DATE THE EXPENSES WER E NOT ALLOWABLE. 13.2. BEFORE THE LD. CIT(A) THE ASSESSEE CHALLE NGED THIS DISALLOWANCE. BUT LD. CIT(A) DECIDED THE ISSUE AGAINST THE ASSESSEE. 13.3. DURING THE COURSE OF HEARING THE LD. COUNSEL OF THE ASSESSEE FAIRLY SUBMITTED THAT THIS ISSUE SHOULD GO BACK AND IT SHOULD BE DECIDED ON THE BASIS OF JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF EXCEL INDUSTRIE S LTD (SUPRA). IT MUMBAI INTERNATIONAL AIRPORT P LTD. 6 WAS ALSO SUBMITTED THAT THE AMOUNT ACTUALLY PAID SH OULD BE ALLOWED. 13.4. PER CONTRA THE LD. CIT-DR DID NOT RAISE ANY OBJECTION AND SUBMITTED THAT PROPER APPRECIATION OF FACTS HAVE NO T BEEN DONE IN THIS CASE AND HE WOULD HAVE NO OBJECTION IF THIS IS SUE IS SENT BACK TO THE FILE OF THE AO. 13.5. WE HAVE GONE THROUGH THE ORDERS PASSED BY LOW ER AUTHORITIES ON THIS ISSUE. IT IS NOTED THAT NONE OF THE AUTHO RITIES HAVE NARRATED PROPER FACTS AS TO WHETHER THE TOTA L AMOUNT DEBITED UNDER THIS HEAD WAS ON ACCOUNT OF PROVISION OR SOME PART OF IT WAS PAID ALSO. FURTHER IT IS ALSO NOT COMING OUT W HETHER PROVISION FOR LEAVE ENCASHMENT HAS BEEN MADE ON THE BASIS O F ACTUARIAL BASIS OR NOT. IN OUR VIEW THIS ISSUE NEEDS TO GO BACK FOR PROPER VERIFICATION OF FACTS AND THEREFORE WE SEND THI S ISSUE BACK TO THE FILE OF THE AO FOR PROPER ADJUDICATION A FTER CONSIDERING ALL THE FACTS AND THE JUDGMENTS IN THIS REGARD FOR WHICH THE AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSE E. THE ASSESSEE SHALL SUBMIT REQUISITE DETAILS AND DOCUMENTARY E VIDENCES TO BRING COMPLETE FACTS ON RECORD AND PLACE ALL THE JUDGEMENTS AS MAY BE CONSIDERED APPROPRIATE AS PER LAW AND FACTS. THE AO SHALL DECIDE THIS ISSUE AFRESH AFTER TAKIN G INTO ACCOUNT ALL THE MATERIAL HELD ON RECORD AND ALL THE JUDGEMEN TS AS AVAILABLE AT THAT TIME ON THIS ISSUE. THIS GROUND MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. RESPECTFULLY FOLLOWING HE SAID DECISION WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-DECIDE THE ISSUE AFRESH AFTER TAKING INTO ACCOUNT ALL THE MATERIAL HELD ON RECORD AND AL L THE JUDGMENTS AS AVAILABLE AT THAT TIME ON THIS ISSUE. THUS THIS GROUND IS T REATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. COMING TO THE REVENUES APPEAL IN ITA NO. 4838/MUM/2015 WHEREIN IT HAS RAISED THE FOLLOWING EFFECTIVE GROUN DS OF APPEAL: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF 25% DEPRECIATION ON UPFRONT FEES OF RS.150 CRORE WITHOU T CONSIDERING THE FACT MUMBAI INTERNATIONAL AIRPORT P LTD. 7 THAT THE ASSESSEE HAS NOT ACQUIRED ANY ABSOLUTE RIG HTS ON THE AIRPORT SO AS TO EQUATE IT WITH A LICENSE BUT INSTEAD THE AAI HAS GRANTED THE ASSESSEE THE RIGHT TO PERFORM CERTAIN FUNCTIONS DUR ING THE CONTRACT PERIOD OF 30 YEARS AND HENCE THE ASSESSEE IS ENTITLED FOR DEDUCTION ONLY THE PROPORTIONATE AMOUNT I.E. L/30 TH OF RS.150 CRORE? 2(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSE SSING OFFICER TO TREAT THE EXPENDITURE OF RS. 13 83 37 443/- INCURRED TOWA RDS VARIOUS EXPENDITURE SUCH AS REALIGNMENT OF NALLAH'S IN FORE COURT OF PROPOSED INTEGRATED TERMINAL REALLOCATION OF CPWD STAFF AND OTHER OPERATIONAL EXPENDITURE AS REVENUE EXPENDITURE WITHOUT APPRECIA TING THAT THESE EXPENSES RESULT IN ENDURING BENEFIT TO THE ASSESSEE AND HENCE IS CAPITAL EXPENDITURE? 2(B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSE SSING OFFICER TO TREAT THE EXPENDITURE OF RS.13 83 37 443/- INCURRED TOWAR DS VARIOUS EXPENDITURE SUCH AS REALIGNMENT OF NALLAH'S IN FORE COURT OF PROPOSED INTEGRATED TERMINAL REALLOCATION OF CPWD STAFF AND OTHER OPERATIONAL EXPENDITURE AS REVENUE EXPENDITURE IGNORING THE RAT IO OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. MA NGAYARKARASI MILLS (315 ITR 114) WHEREIN IT WAS HELD THAT REPLACEMENT EXPENDITURE IS NEITHER CURRENT REPAIRS NOR REVENUE IN NATURE WHICH IS SQUARELY APPLICABLE TO THE ASSESSEE'S CASE? 3(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF RS.3 00 51 959/- MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) WITHOUT APPRECIATING THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX UNDER VARIOUS SECTION I.E. 1941 194J AND 194C BUT FAILED TO DO S O? 3(B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED QJ(A) ERRED IN DELETING THE DISALL OWANCE OF RS.3 00 51 959/- MADE BY THE ASSESSING OFFICER U/S. 40(A)(IA) WITHOUT APPRECIATING THAT THE ASSESSEE'S TAX AUDITORS HAD P OINTED OUT THAT THE SAID AMOUNT IS DISALLOWABLE? 4(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE DISAL LOWANCE OF RS.17 22 24 000/- PAID AS RETRENCHMENT COMPENSATION TO AAI FOR THE RELEVANT ASSESSMENT YEAR 2011-12? 4(B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN HOLDING THAT RETRE NCHMENT COMPENSATION IS ALLOWABLE AS A DEDUCTION U/S.37(L) OF THE INCOME -TAX ACT 1961? MUMBAI INTERNATIONAL AIRPORT P LTD. 8 4(C) WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN HOLDING THAT SECTI ON 35DDA IS NOT APPLICABLE WITHOUT APPRECIATING THAT SUCH RETRENCHM ENT COMPENSATION PAID BY THE ASSESSEE COMPANY IS IN CONNECTION WITH THE VOLUNTARY RETIREMENT OF EMPLOYEES? 4(D) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN RELYING ON THE DEC ISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SINNAR BID I UDYOG LTD. [2002 123 TAXMAN 559 (BOM)] AND CIT VS. MARAGARINE & REFI NED OILS CO. LTD. [2006 282 ITR 576 (KAR)] WITHOUT APPRECIATING THAT THE SAID DECISION WERE RENDERED FOR THE A.Y. 1989-90 AND A.Y. 1981-82 RESPECTIVELY I.E. PRIOR TO INSERTION OF SECTION 35DDA WHICH IS APPLIC ABLE FOR A.Y.2002-03 ONWARDS AS THE SAME WAS INSERTED BY THE FINANCE ACT 2001 W.E.F. 01.04.2002 AND THEREFORE THE RATIO OF THE DECISIONS CITED SUPRA ARE NOT APPLICABLE TO THE ASSESSMENT YEAR UNDER CONSIDERATI ON. 5(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN HOLDING THAT DEVEL OPMENT FEE OF RS.25 98 50 335/- COLLECTED BY THE ASSESSEE FROM TH E EMBARKING PASSENGERS AT THE CHHATRAPATI SHIVAJI INTERNATIONAL AIRPORT MUMBAI DURING THE FINANCIAL YEAR 2010-11 RELEVANT FOR THE ASSESSMENT YEAR 2011-12 IS A CAPITAL RECEIPT AND NOT A REVENUE REC EIPT? 5(B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CTT(A) ERRED IN HOLDING THAT DEVEL OPMENT FEE COLLECTED BY THE ASSESSEE COMPANY IS A CAPITAL RECEIPT BASED ON ITS APPLICATION FOR ACQUISITION OF CAPITAL ASSETS WITHOUT APPRECIATING THE FACT THAT APPLICATION OF RECEIPTS DOES NOT DETERMINE THE NATURE AND TAXAB ILITY OF THE RECEIPTS? 5(C) WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN RELYING ON THE DEC ISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CONSUMER ONLINE FOUNDA TION VS. UNION OF INDIA & OTHERS (2011 5 SCC 360) WITHOUT APPRECIATIN G THAT IN THAT CASE THE ISSUE BEFORE THE HON'BLE APEX COURT WAS WHETHER THE ASSESSEE COMPANY AS A LESSEE OF AAI CAN COLLECT DEVELOPMENT FEE FROM THE EMBARKING PASSENGERS AT THE CHHATRAPATI SHIVAJI INT ERNATIONAL AIRPORT MUMBAI AND THE APEX COURT DID NOT GIVE A FINDING RE GARDING THE NATURE OF RECEIPT IN THE HANDS OF LESSEES OF THE AIRPORTS IN CLUDING THE ASSESSEE COMPANY? 5(D) WHETHER ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN HOLDING THAT ONCE AN AMOUNT IS HELD TO BE IN THE NATURE OF TAX IT CANNOT BE SUBJECTED TO FURTHER TAX WITHOUT APPRECIATING THAT SUCH AMOUNT CONSTITUTES CONSTRUCT ION RECEIPT IN THE ASSESSEE'S HANDS AND HENCE LIABLE TO BE TAXED? MUMBAI INTERNATIONAL AIRPORT P LTD. 9 6(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LEARNED CTT(A) ERRED IN DELETING THE DISAL LOWANCE U/S.14A WITHOUT APPRECIATING THE FACT THAT THE A O HAS PROP ERLY RECORDED HIS SATISFACTION FOR INVOKING THE PROVISIONS OF RULE 8D AND THEREFORE SINCE RULE 8D IS INVOKED THE DISALLOWANCE HAS TO BE WORK ED OUT AS PER THE FORMULA PRESCRIBED THEREIN AND THERE IS NO SCOPE FO R ANY DEVIATION THEREFROM? 6(B) WHETHER ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE AND IN LAW THE LEARNED QT(A) ERRED IN DELETING THE DISALL OWANCE U/S.14A OBSERVING THAT SINCE THERE IS NO EXEMPT INCOME NO DISALLOWANCE CAN BE MADE U/S.14A WITHOUT APPRECIATING THAT AS HELD R TH E DECISION OF SPECIAL BENCH OF ITAT DELHI IN THE CASE OF CHEMIINVEST 121 ITD 318 (DELHI) (SB) PROVISIONS OF SECTION 14A ARE APPLICABLE EVEN THROUGH NO EXEMPT INCOME HAS BEEN EARNED DURING THE YEAR? 7. WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN UPHOLDING THE ASSE SSEE'S CLAIM THAT CAPITAL EXPENDITURE INCURRED BY THE ASSESSEE ON TAX IWAYS APRONS PARKING BAYS AND BRIDGES IS ENTITLED TO DEPRECIATION @25% T REATING THE SAME AS PLANT & MACHINERY IGNORING THAT THE TAXIWAYS APRON S PARKING BAYS AS AKIN TO ROADS AND BUILDINGS AND THEREFORE ENTITLED TO DEPRECIATION @10% . ' 3. GROUND NO.1 RELATES TO THE DELETION OF DISALLOWA NCE OF 25% OF DEPRECIATION ON UPFRONT FEES OF ` 150 CRORES. BOTH THE PARTIES AGREED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY T HIS TRIBUNAL VIDE ITS ORDER DATED 14.02.2014 FOR A.Y. 2007-08 IN ITA NO. 7507/ MUM/2011 & 7111/MUM/2011 WHICH DECISION WAS FOLLOWED FOR A.Y. 2008-09. THE TRIBUNAL FOR A.Y. 2007-08 HAS OBSERVED AS UNDER: 10.2 THAT THE AO HAS STATED THAT THE ASSESSEE HAS GOT LEASE HOLD RIGHTS FOR A PERIOD OF 30 YEARS AND WHEREAS THE ASS ESSEE HAS CONTENDED THAT THE ASSESSEE HAS GOT A LICENSE FOR A PERIOD OF 30 YEARS AND AS SUCH IT IS AN INTANGIBLE ASSETS. THU S THE ASSESSEE IS ENTITLED FOR DEPRECIATION AS PER SECTION 32(1)(II) OF THE ACT. WE OBSERVE THAT THE SAID AMOUNT OF RS.150 CRORES PAID BY ASSESSEE IS NON-REFUNDABLE. THE ASSESSEE HAS GOT THE PRIVILEGE UNDER OMDA TO COLLECT CHARGES OF THE NATURE AS MENTIONED IN TH E AGREEMENT MUMBAI INTERNATIONAL AIRPORT P LTD. 10 ENTERED INTO I.E. OMDA FROM THE USERS OF AIRPORT PREMISES. WE OBSERVE THAT IT IS NOT A CASE WHERE THE ASSESSEE HA S GOT THE TRANSFER OF A RIGHT TO ENJOY THE AIRPORT PREMISES. THE ASSESSEE ONLY GOT A LICENSE OR RIGHT TO DO SOMETHING AT THE AIRPO RT PREMISES. THE HONBLE APEX COURT HAS HELD IN THE CASE OF B. M. LA L (SUPRA) THAT THE TRANSACTION IS A LEASE IF IT GRANTS THE INTERE ST IN THE LAND AND WHEREAS IT IS A LICENSE IF IT GIVES A PERSONAL PRIV ILEGE WITH NO INTEREST IN THE LAND. WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS GOT THE ECONOMIC /COMMERCIAL RIGHT UNDER THE SAID A GREEMENT TO COLLECT CHARGES FROM THE USERS OF THE AIRPORT PREMI SES WHICH IS SIMILAR TO GRANT OF A LICENSE TO THE ASSESSEE. THIS CASE IS SIMILAR TO THE CASE OF TECHNOSHARES AND STOCKS LTD AND OTHERS (SUPRA) WHEREIN THE HONBLE APEX COURT HAS HELD THAT A RIGH T GIVEN TO MEMBER OF STOCK-EXCHANGE TO CARRY ON THE BUSINESS A T THE PREMISES OF THE STOCK-EXCHANGE IS A BUSINESS OR COM MERCIAL RIGHT WHICH IS AKIN TO LICENSE IN TERMS OF SECTION 32(1)( II) OF THE ACT THEREFORE ELIGIBLE FOR DEPRECIATION. THEIR LORDSHI PS HAVE HELD THAT RIGHT TO PARTICIPATE IN THE MARKET IS AN ECONOMIC A ND MONEY VALUE ITSELF SATISFIES THE TEST OF BEING A LICENSE. THERE IS NO DISPUTE TO THE FACT THAT THE SAID PAYMENT OF RS.150 CRORES PAID TO AAI HAS NOT RESULTED TO THE ASSESSEE IN THE ACQUISITION OF ANY TANGIBLE ASSETS LIKE BUILDING MACHINERY PLANTS OR FURNITURE. THER EFORE THE SAID PAYMENT OF RS.150 CRORES HAS NOT RESULTED INTO ACQU ISITION OF TANGIBLE ASSETS. THUS THE ASSESSEE HAS ONLY ACQU IRED RIGHT TO COLLECT CHARGES FROM THE USERS OF THE AIRPORT PREEM IES WHICH IS A BUSINESS OR COMMERCIAL RIGHT IN THE FORM OF LICENSE AND THEREFORE IT IS AN INTANGIBLE ASSETS AS PER SECTION 32(1)(II) OF THE ACT. THE HONBLE DELHI HIGH COURT IN THE CASE OF HINDUSTAN C OCA COLA BEVERAGES PVT LTD (SUPRA) HAS ALSO HELD THAT THE AS SETS WHICH ARE INCLUDED IN THE DEFINITION OF INTANGIBLE ASSETS I NCLUDE ALONG WITH OTHER THINGS ANY OTHER BUSINESS OR COMMERCIAL RIGH TS OF SIMILAR NATURE. IN THIS REGARD IT IS RELEVANT TO STATE THA T THE DECISION OF DELHI HIGH COURT IN THE CASE OF ONGC VIDESH LTD (SU PRA) HAS HELD THAT THE ASSESSEE WHO WAS ASSIGNED THE RIGHTS TO PA RTICIPATE IN OIL EXPLORATION IN RUSSIA THROUGH A CONSORTIUM FOR A PE RIOD OF 25 YEARS AND PAID THE TOTAL CONSIDERATION FOR OBTAINING 20% MEMBERSHIP IN THE CONSORTIUM AMOUNTING TO RS. 155.9 CRORES WAS TREATED TO ACQUIRE A LICENSE BEING INTANGIBLE ASSETS AND THU S ASSESSEE WAS ENTITLED TO CLAIM DEPRECIATION U/S. 32(1)(II) OF TH E ACT. PUNE BENCH OF THE TRIBUNAL IN THE CASE OF ASHOKA INFO (P) LTD (SUPRA) HAS ALSO HELD THAT THE EXPENDITURE INCURRED ON CONSTRUCTION OF HIGHWAY IS ELIGIBLE FOR DEPRECIATION @25% AS THIS EXPENDITURE HAS GIVEN RISE TO AN INTANGIBLE ASSETS IN THE HANDS OF THE ASSES SEE. IN VIEW OF ABOVE DECISIONS AND THE FACTS OF THE CASE WE HOLD THAT THE LD. CIT(A) HAS RIGHTLY HELD THAT THE PAYMENT OF UPFRONT FEE OF RS.150 MUMBAI INTERNATIONAL AIRPORT P LTD. 11 CRORES PAID BY ASSESSEE TO AAI HAS CREATED CAPITA L ASSETS IN THE FORM OF LICENSE TO DEVELOP AND MODERNIZE THE AIRPOR T AND COLLECT CHARGES AS PER TERMS AND CONDITIONS AS PRESCRIBED U NDER THE AGREEMENT ENTERED INTO WHICH IS AN INTANGIBLE ASSE TS TO THE ASSESSEE. THUS ASSESSEE IS ENTITLED FOR DEPRECIATIO N. 10.3 HENCE THE DISALLOWANCE OF RS.22.50 CRORES MAD E BY AO HAS RIGHTLY BEEN DELETED BY LD. CIT(A) BY DIRECTING THE AO TO ALLOW DEPRECIATION AT THE RATE OF 25% ON THE SAID PAYMENT OF UPFRONT FEE OF RS.150 CRORES. THUS GROUND NO.1 TAKEN BY DEPART MENT IS REJECTED. RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE WE CONFIRM THE ORDER OF THE CIT(A) DELETING THE DIS ALLOWANCE FOR THE YEAR UNDER CONSIDERATION. THIS GROUND TAKEN BY THE REVE NUE IS DISMISSED. 4. GROUND NO.2 RELATES TO THE TREATMENT OF VARIOUS EXPENSES INCURRED TOWARDS REALIGNMENT OF NALLAH'S IN FORECOURT OF PROPOSED IN TEGRATED TERMINAL REALLOCATION OF CPWD STAFF AND OTHER OPERATIONAL EX PENDITURE AS REVENUE EXPENDITURE. THE LEARNED DR CONTENDED THAT THE AS SESSEE HAS INCURRED A SUM OF ` 13 83 37 443 /- TOWARDS CIVIL WORKS/OPERATIONAL EXPENSES AS REVENUE EXPENDITURE. BOTH THE PARTIES AGREED THAT IDENTICAL ISSUE HAD ARISEN IN THE CASE OF THE ASSESSEE FOR A.YS. 2009-10 2010-11 AND 2011-12 AND WHATEVER VIEW IS TAKEN THEREIN SHALL BE APPLICABLE TO THIS Y EAR ALSO. WE FIND THAT THE TRIBUNAL VIDE ITS ORDER DATED 13.11.2017 IN THE A. YS 2009-10 2010-11 AND 2011-12 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSE SSEE BY OBSERVING AS UNDER: 22. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE AU THORITIES BELOW. WE HAVE ALSO GONE THROUGH VARIOUS JUDGMENTS AS HAS BEEN REFERRED MUMBAI INTERNATIONAL AIRPORT P LTD. 12 TO BEFORE US AS WELL AS THE CIT(A). IT IS A SETTLE D LAW IN VIEW OF THE DECISION OF KEDARNATH JUTE MANUFACTURING CO. LTD. V S. CIT (82 ITR 363) THAT ASSESSEES ENTITLEMENT TO A PARTICULAR D EDUCTION OR NOT WILL DEPEND ON THE PROVISION OF LAW RELATING THERET O AND NOT ON THE VIEW WHICH THE ASSESSEE MIGHT TAKE OF HIS RIGHTS NO R CAN EXISTENCE OR ABSENCE OF ENTRIES IN THE BOOKS OF ACCOUNTS BE D ECISIVE OR CONCLUSIVE IN THE MATTER. WE HAVE ALSO GONE THROUG H THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF EMPIRE JUTE CO. LTD. VS CIT (124 ITR 1) WHEREIN THE DEDUCTIBILITY OR OTHERWISE OF AN EXPENDITURE INCURRED DURING THE COURSE OF BUSINESS ACTIVITIES WAS DECIDED BY OBSERVING AS UNDER: THERE MAY BE CASES WHERE EXPENDITURE EVEN IF INCUR RED FOR OBTAINING AN ADVANTAGE OF ENDURING BENEFIT MAY NO NE THE LESS BE ON REVENUE ACCOUNT AND THE TEST OF ENDURIN G BENEFIT MAY BREAK DOWN. IT IS NOT EVERY ADVANTAGE OF ENDUR ING NATURE ACQUIRED BY AN ASSESSEE THAT BRINGS THE CASE WITHIN THE PRINCIPLE LAID DOWN IN THIS TEST. WHAT IS MATER IAL TO CONSIDER IS THE NATURE OF THE ADVANTAGE IN A COMMER CIAL SENSE AND IT IS ONLY WHERE THE ADVANTAGE IS IN THE CAPITAL FIELD THAT THE EXPENDITURE WOULD BE DISALLOWABLE ON AN APPLICATION OF THIS TEST. ..... THE TEST OF ENDURING BENEFIT IS THEREFORE NO CERT AIN OR CONCLUSIVE TEST AND IT CANNOT BE APPLIED BLINDLY AN D MECHANICALLY WITHOUT REGARD TO THE PARTICULARS FACT S AND CIRCUMSTANCES OF A GIVEN CASE. (EMPHASIS SUPPLIED) THE UNDISPUTED FACTS PLACED BEFORE US ARE THAT THE ASSESSEE UNDER THE OMDA AGREEMENT WITH AIRPORT AUTHORITY OF INDIA IS OPERATING MAINTAINING MANAGING DEVELOPING THE MUMBAI AIRPORT AS PER THE INTERNATIONAL STANDARD. OTHER OBLIGATIONS RELATE T O OVERALL MANAGEMENT DEVELOPMENT ETC. AS PER THE TERMS OF OM DA THE ASSESSEE HAS TO DISCHARGE VARIOUS OBLIGATIONS IN MA INTAINING AND OPERATING THE AIRPORT SO AS TO BRING IT TO THE INTE RNATIONAL STANDARD. THUS THE ASSESSEE HAS TO INCUR VARIOUS EXPENSES FO R SUCH DEVELOPMENT AND MAINTENANCE OF THE AIRPORT. DURING THE YEAR THE ASSESSEE HAS INCURRED THE EXPENDITURE ON VARIOUS AC TIVITIES. THE ASSESSEE HAS INCURRED THE EXPENDITURE IN MAINTAININ G EXISTING ASSETS WHICH HAS EITHER BEEN REPAIRED OR RENOVATED. OUT OF THE EXPENDITURE OF ` 20 35 73 477/- OF SUM OF ` 16 07 30 868/- HAS BEEN CONTRIBUTED BY THE ASSESSEE TO MMRDA FOR THE C ONSTRUCTION OF MUMBAI INTERNATIONAL AIRPORT P LTD. 13 SAHAR ELEVATED ACCESS ROAD FROM WESTERN EXPRESS HIG HWAY TO CHHATRAPATI SHIVAJI INTERNATIONAL AIRPORT. THE OWN ERSHIP OF THIS ROAD WOULD REMAIN WITH THE MMRDA AND WOULD NOT BE T RANSFERRED TO THE ASSESSEE. THE ASSESSEES INTEREST IN OUR V IEW IN THIS ROAD WAS THAT THE PASSENGERS WOULD HAVE A SMOOTH ACCESS TO CHHATRAPATI SHIVAJI INTERNATIONAL AIRPORT AND PROVI DE A LOOK AS PER INTERNATIONAL STANDARD. THE REST OF THE EXPENDITUR E RELATE TO THE MAINTENANCE AND UPKEEP OF THE EXISTING ASSETS. THE ASSESSING OFFICER TREATED THE WHOLE OF THE EXPENSES TO BE CAP ITAL EXPENDITURE AS THE ASSESSEE ITSELF HAS TREATED THE SAID EXPENDI TURE IN THE BOOKS OF ACCOUNT AS CAPITAL EXPENDITURE. THE ALLOWABILIT Y OF EXPENSES FOR THE PURPOSE OF INCOME TAX AS HAS BEEN HELD BY US I N THE PREVIOUS PARAGRAPHS FOLLOWING THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF KEDARNATH JUTE MANUFACTURING CO. LTD. VS. C IT (SUPRA) WILL DEPEND ON THE PROVISION OF INCOME TAX ACT AND NOT O N THE VIEW WHICH THE ASSESSEE MIGHT TAKE OF HIS RIGHTS NOR CAN EXISTENCE OR ABSENCE OF ENTRIES IN THE BOOKS OF ACCOUNTS BE DECI SIVE OR CONCLUSIVE IN THE MATTER. SINCE THE OWNERSHIP OF T HE ROAD VEST WITH MMRDA THE ASSESSEE IN OUR OPINION DOES NOT GET ANY DIRECT BENEFIT OF ENDURING NATURE. NO DOUBT THE PASSENGERS TRAVEL LING TO THE INTERNATIONAL AIRPORT WERE BENEFITED BY WAY OF SMOO TH ACCESS TO THE AIRPORT. THE ASSESSEE MADE ONE TIME CONTRIBUTION F OR THE CONSTRUCTION OF THE SAID ROAD. BY THIS CONTRIBUTIO N NO ASSET IS CREATED BY THE ASSESSEE BUT IN COMMERCIAL SENSE IN OUR OPINION THE INCURRENCE OF SUCH EXPENDITURE CERTAINLY FACILI TATES THE BUSINESS OF THE ASSESSEE. THIS EXPENDITURE CANNOT BE HELD T O BE CAPITAL EXPENDITURE MERELY BECAUSE THE BUSINESS OF THE ASSE SSEE IS GETTING ENDURING BENEFIT. IN OUR VIEW THE BUSINESS EXIGEN CIES DEMAND THE ASSESSEE TO INCUR THIS EXPENDITURE BY MAKING THE CO NTRIBUTION TO MMRDA. 23. WE HAVE GONE THROUGH THE JUDGMENT OF THE HONBL E ALLAHABAD HIGH COURT IN THE CASE OF ADDITIONAL CIT VS. DHAMPUR SUGAR MILL P. LTD. [2015] 370 ITR 194 (ALL). WE NO TED THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF SUGAR CHEMICALS AND POWER AND HAD A DISTILLERY. TH E ASSESSEE MADE PAYMENT OF RS. 8.48 CRORES TO THE UPPCL WHICH WAS THE ONLY CUSTOMER FOR CONSTRUCTION OF A TRANSMISSION LINE A ND OTHER SUPPORTING WORK FOR SUPPLY OF POWER. WHEN THE SAID EXPENDITURE WAS HELD AS CAPITAL EXPENDITURE BY THE ASSESSING OF FICER THE HONBLE HIGH COURT HELD AS UNDER: THAT THE POWER TRANSMISSION LINES WHICH WERE LAID BY THE ASSESSEE WERE UPON ERECTION TO CONSTITUTE THE EXCLUSIVE PROPERTY OF THE UPPCL. THE UPPCL WAS THE MUMBAI INTERNATIONAL AIRPORT P LTD. 14 ONLY CONSUMER OF THE ELECTRICITY GENERATED BY THE ASSESSEE. THE ASSESSEE INCURRED THE EXPENDITURE TO FACILITATE ITS OWN BUSINESS. THE FIXED CAPITAL OF T HE ASSESSEE WAS UNTOUCHED AND THERE WAS NO CAPITAL ACCRETION FOR THE ASSESSEE. THE EXPENDITURE WHICH WAS INCURRED BY THE ASSESSEE IN THE LAYING OF TRANSMISSION LINES WAS CLEARLY ON REVENUE ACCOUNT. UPON THE ERECTION OF TRANSMISSION LINES THEY WERE TO VEST ABSOLUTELY IN THE UPPCL. THE EXPENDITURE WHICH WAS INCURRED BY THE ASSESSEE WAS FOR FACILITATING T HE EFFICIENT CONDUCT OF ITS BUSINESS SINCE THE ASSESSE E HAD TO SUPPLY ELECTRICITY TO ITS SOLE CONSUMER THE UPPCL. THIS WAS NOT AN ADVANTAGE OF A CAPITAL NATURE. 24. FURTHER WE NOTED THAT HONBLE BOMBAY HIGH COUR T IN THE CASE OF NATIONAL ORGANIC CHEMICALS LTD. VS. CIT [19 93] 203 ITR 410 (BOM) TOOK A VIEW THAT THE ASSESSEE INCURRED EXPEND ITURE FOR THE PURPOSE OF CONSTRUCTION OF JETTY FOR HANDLING STOR AGE AND TRANSPORTATION OF MATERIALS MANUFACTURED OR HANDLED BY THE ASSESSEE. THE ASSESSEE WAS GRANTED LICENSE BY THE STATE GOVERNMENT. UNDER THE TERMS OF LICENSE THE ASSESS EE WAS GIVEN THE RIGHT TO USE THE JETTY WITHOUT PAYMENT OF ANY C HARGES FOR A PERIOD OF THREE YEARS FROM ITS COMPLETION. HOWEVER THE OWNERSHIP WOULD REMAIN WITH THE STATE GOVERNMENT. IT WAS HEL D THAT SUCH EXPENDITURE WAS INCURRED WITH A VIEW TO OBTAIN COMM ERCIAL ADVANTAGE AND THEREFORE IT WAS REVENUE EXPENDITUR E. 25. FURTHER WE NOTED THAT HONBLE RAJASTHAN HIGH C OURT IN THE CASE OF CIT VS. RAJ SPINNING & WEAVING MILLS LTD . [2005] 272 ITR 487 (RAJ) FOLLOWING THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF EMPIRE JUTE CO. LTD. [1980] 124 ITR 1 (SC) HELD AS UNDER: IN DETERMINING WHETHER A PARTICULAR EXPENDITURE IS CAPITAL EXPENDITURE OR REVENUE EXPENDITURE THE TEST OF ENDU RING BENEFIT IS NOT A CERTAIN OR CONCLUSIVE TEST AND IT CANNOT BE APPLIED BLINDLY AND MECHANICALLY WITHOUT REGARD TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF A GIVEN CASE. THE MERE FACT THAT THE AMOUNT SPENT HAS BEEN USED FOR CONSTRUCTION OF A BUILDING OR STRUCTURE OF PERMANEN T NATURE IS NOT THE DECISIVE TEST FOR HOLDING THE EXPENSES T O BE CAPITAL OUTLAY OR REVENUE OUTLAY. WHERE SUCH CONSTR UCTION DOES NOT RESULT IN ACQUISITION OF ANY CAPITAL ASSET S TO THE TRADE OF THE ASSESSEE OR THE PROPERTY DOES NOT BECO ME THE PROPERTY OF THE ASSESSEE IT DOES NOT RESULT IN ACQ UISITION OF MUMBAI INTERNATIONAL AIRPORT P LTD. 15 AN ASSET ENDURING NATURE BY THE ASSESSEE. SECONDLY IT IS ALSO CLEARLY DISCERNIBLE THAT IF SUCH EXPENSES ARE INCURRED FOR THE PURPOSE OF THE BUSINESS FOR DERIVING ANY BENEFI T WHETHER TO PRESERVE THE BUSINESS OR TO FACILITATE THE RUNNI NG OF THE BUSINESS MORE SMOOTHLY OR TO MAKE THE BUSINESS MORE PROFITABLE OR TO SECURE ANY OTHER ADVANTAGE FOR THE ASSESSEES BUSINESS SUCH EXPENSES ARE TO BE TREATED AS HAVING BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE ASSESSEE AND ARE REVENUE EXPENDITURE. 26. WE HAVE ALSO GONE THROUGH THE DECISION OF HONB LE MADRAS HIGH COURT IN THE CASE OF CIT VS. COATS VIYELLA IND IA LTD. [2002] 253 ITR 667 (MAD). WE NOTED THAT IN THIS CASE THE HONBLE HIGH COURT FOLLOWING THE DECISION OF HONBLE SUPREME COU RT IN THE CASE OF L H SUGAR FACTORY AND OIL MILLS (P.) LTD. VS. CI T [1980] 125 ITR 293 (SC) HELD AS UNDER: HELD THAT IN THE PRESENT CASE THE BRIDGE WAS BU ILT BY THE GOVERNMENT AND THE ASSESSEE DID NOT ACQUIRE ANY OWNERSHIP OVER THE BRIDGE BY PAYING CONTRIBUTION TO WARDS CONSTRUCTION OF THE BRIDGE. THE ASSESSEE RECEIVED N O ADDITION TO THE VALUE OF ANY OF THE ASSETS OWNED BY IT FOR THE PAYMENT. THE BRIDGE MERELY FACILITATED THE MOVE MENT OF THE WORKMEN TO GAIN ACCESS TO THE ASSESSEES FACTOR Y AND FOR THE MOVEMENT OF THE GOODS OVER THE BRIDGE. THE PAYMENT OF CONTRIBUTION WAS MADE TO THE GOVERNMENT FOR CONSTRUCTION OF A NEW BRIDGE IN PLACE OF THE OLD ON E WHICH BECAME UNSERVICEABLE. THE EXPENDITURE INCURRED WAS REVENUE EXPENDITURE IN RESPECT OF THE ASSESSMENT YE AR 1991-92. 27. IN VIEW OF THE AFORESAID DISCUSSION WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) TREATING THE S AID EXPENDITURE TO BE A REVENUE EXPENDITURE. IT IS ACCORDINGLY UPHELD . GROUND NOS. 3 & 4 FOR A.Y. 2009-10 GROUND NOS. 2 & 3 FOR A.Y. 20 10-11 AND GROUND NO.2 FOR A.Y. 2011-12 ARE DISMISSED. RESPECTFULLY FOLLOWING THE SAID ORDER OF THE TRIBUN AL WE CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUND TAKEN BY THE REVE NUE. 5. GROUND NO.3 IN REVENUES APPEAL RELATES TO THE D ELETION OF THE DISALLOWANCE OF ` 3 00 51 959/- U/S. 40(A)(IA) OF THE ACT. BOTH THE PARTIES MUMBAI INTERNATIONAL AIRPORT P LTD. 16 AGREED THAT THIS ISSUE IS COVERED IN THE ASSESSEES OWN CASE FOR A.Y. 2008-09 VIDE ITS ORDER DATED 30.11.2016 IN ITA NO. 3232/MU M/2012 WHEREIN THE TRIBUNAL ON IDENTICAL FACTS RESTORED THE ISSUE TO T HE FILE OF THE CIT(A) WITH SPECIFIC DIRECTIONS. WE HAVE GONE THROUGH THE SAI D ORDER OF THE TRIBUNAL AND HAVE NOTED THAT VIDE PARA 6.5 AND 6.6 THE TRIBUNAL HAS HELD AS UNDER: 6.5. WE HAVE GONE THROUGH THE SUBMISSIONS MADE BY B OTH THE SIDES. THE CASE OF THE ASSESSEE IS THAT THE IMPUGNE D AMOUNTS REPRESENTED MERE PROVISIONS AND THEREFORE TH ESE COULD NOT HAVE BEEN PROPERLY QUANTIFIED AND FURTHER EV EN NAMES OF THE PAYEES WERE NOT CLEAR. THEREFORE NO TDS COULD BE D EDUCTED IN THE YEAR UNDER CONSIDERATION. 6.6. IT IS NOTED FROM THE PERUSAL OF THE ORDER OF T HE LD. CIT(A) THAT HE HAS SIMPLY ACCEPTED THE CLAIM OF TH E ASSESSEE BY STATING THAT THE ASSESSEE HAD MADE ONLY PROVISION A ND THE LD. COUNSEL OF THE ASSESSEE HAD SUBMITTED THAT I N THE NEXT YEAR WHEN PAYMENTS WERE MADE AGAINST THE PROVISION S TDS WAS DEDUCTED AND THUS DISALLOWANCE MADE BY THE A O WAS ALSO DELETED. WE FIND THAT UNFORTUNATELY THE OR DER OF THE LD. CIT(A) ON THIS ISSUE IS DEVOID OF FACTUAL A NALYSIS OR PROPER REASONING. LD. CIT(A) HAS NOT EVEN DISCUSSED THE DE TAILS OF THE EXPENSES FOR WHICH PROVISION WAS MADE BY THE ASSESS EE WHICH HAS BEEN DISALLOWED BY THE AO. NOTHING HAS BEEN DISCUSSED ABOUT THE NATURE OF THE EXPENSES POSITION OF CRYST ALLISATION OF THESE EXPENSES AVAILABILITY OF PARTICULARS OF THE PAYEES ETC. IT HAS BEEN OBSERVED IN THE ORDER BY LD. CIT(A) THAT WH ENEVER PAYMENTS ARE ACTUALLY MADE AGAINST THESE PROVISIONS T DS IS DEDUCTED AS WAS STATED BY THE LD. COUNSEL. BUT WHAT ARE THE PR ECISE FACTS IN THIS REGARD HAS NOT BEEN DISCUSSED IN THE ORD ER. NO DETAILS ARE AVAILABLE OR DISCUSSED BY THE LD.CIT(A) R EGARDING VARIOUS ASPECTS E.G. WHEN THESE EXPENSES WERE ACTUALLY INCURRED IN WHOSE NAME THESE ARE FINALLY CREDITED WHO AR E THE ACTUAL PAYEES WHEN THE PAYMENTS WERE MADE ACTUALLY AND WHETHER THE TDS WAS DEDUCTED AT THE TIME OF MAKING O F PAYMENTS OR NOT? NOTHING HAS BEEN BROUGHT OUT ON RECORD TO ENSU RE THAT FINALLY THERE WAS NO REVENUE LEAKAGE AND FULL COMPLIANCE OF THE TDS PROVISIONS WAS MADE ULTIMATELY. WE FIND THAT ORDER OF LD. CIT(A) IS DEVOID OF ANY FACTUAL NARRATION AND THEREFORE WE FIND IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE MUMBAI INTERNATIONAL AIRPORT P LTD. 17 CIT(A) FOR COMPLETE FACTUAL ANALYSIS AND THEREAFTER APPLYING THE CORRECT POSITION OF LAW. LD. CIT(A) SHALL PROVIDE A DEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSE E SHALL ALSO EXTEND REQUISITE COOPERATION TO THE LD. CIT(A) BY FILING NECESSARY DETAILS / EVIDENCES SO AS TO BRING COMPLETE FACTS ON RECORD. WITH THESE DIRECTIONS THIS GROUND MAY BE TREATED A S ALLOWED FOR STATISTICAL PURPOSES. WE HAVE ALSO FOLLOWED THE SAID DECISION IN THE CASE OF THE ASSESSEE FOR A.YS. 2009-10 2010-11 AND 2011-12. FACTS AND CIRCUMSTAN CES BEING THE SAME RESPECTFULLY FOLLOWING THE SAID DECISIONS WE RESTO RE THE ISSUE TO THE FILE OF THE CIT(A) FOR THE YEAR UNDER CONSIDERATION ALSO WITH A DIRECTION TO RE-DECIDE THE ISSUE AFRESH AFTER GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE ON THE BASIS OF THE DIRECTIONS GIVEN IN A.Y. 2008-09. THUS GROUND NO.3 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. GROUND NO.4 RELATES TO DELETION OF THE DISALLOWA NCE OF ` 17 22 24 000/- PAID AS RETRENCHMENT COMPENSATION TO AAI. BOTH THE PARTIES AGREED THAT IDENTICAL ISSUE HAD ARISEN IN THE CASE OF THE ASSES SEE FOR A.YS. 2010-11 AND 2011-12 AND WHATEVER VIEW IS TAKEN THEREIN SHALL BE APPLICABLE TO THIS YEAR ALSO. WE FIND THAT THE TRIBUNAL VIDE ITS ORDER DATE D 13.11.2017 IN THE A.YS 2009-10 2010-11 AND 2011-12 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY OBSERVING AS UNDER: 33. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE AU THORITIES BELOW. WE NOTED FROM THE FACTS ON RECORD FOR A Y 2010-11 T HAT THE ASSESSEE UNDER AN AGREEMENT OF OMDA WITH AIRPORTS AUTHORITY OF INDIA IS DEVELOPING AND MAINTAINING CHHATRAPATI SH IVAJI INTERNATIONAL AIRPORT. THE ASSESSEE HAS TO CARRY O UT OPERATIONS MAINTENANCE AND DEVELOPMENT OF THE AIRPORT WITH CER TAIN TERMS AND MUMBAI INTERNATIONAL AIRPORT P LTD. 18 CONDITIONS. AS PER CLAUSE 6.14 IN CHAPTER 6 OF THE OMDA THE ASSESSEE IS OBLIGED TO MAKE AN OFFER OF EMPLOYMENT TO A MINIMUM OF 60% GENERAL EMPLOYEES AT ANY TIME DURING THE OPE RATION SUPPORT PERIOD BUT NOT LATER THAN THREE MONTHS PRIO R TO THE EXPIRY OF THE OPERATION SUPPORT PERIOD THAT IT WANTS TO EMPL OY AN OPTION TO ACCEPT OR REJECT THE OFFER BY EMPLOYEES. THIS CLAU SE FURTHER PROVIDES THAT IF LESS THAN 60% OF THE GENERAL EMPLO YEES ACCEPT THE OFFER OF EMPLOYMENT MADE BY THE ASSESSEE THEN ASSE SSEE SHALL PAY TO THE AIRPORTS AUTHORITY OF INDIA RETRENCHMENT COM PENSATION FOR SUCH NUMBER OF GENERAL EMPLOYEES AS REPRESENTED BY THE DIFFERENCE BETWEEN 60% OF THE GENERAL EMPLOYEES ACC EPTING THE OFFER OF EMPLOYMENT MADE BY THE ASSESSEE. THUS THI S CLAUSE SPECIFICALLY DEALS WITH THE TREATMENT OF THE RETREN CHMENT COMPENSATION TO BE PAID TO THE AIRPORTS AUTHORITY O F INDIA AT THE OCCURRENCE OF THE EVENTS MAINTAINED IN THE SAID CLA USE. THE OPERATIONAL SUPPORT PERIOD OF THREE YEARS HAS EXPIR ED DURING THE IMPUGNED ASSESSMENT YEARS UNDER CONSIDERATION AND ACCORDINGLY AIRPORTS AUTHORITY OF INDIA ISSUED INVOICE DATED 08 .03.2010 FOR ITS CLAIM TOWARDS RETRENCHMENT COMPENSATION AMOUNTING T O ` 260 86 03 400/- THE ASSESSEE HAS ACCORDINGLY CAPIT ALIZED AN AMOUNT OF ` 260 86 03 400/- UNDER THE HEAD INTANGIBLE ASSETS I N ITS BOOKS OF ACCOUNT BUT FOR THE PURPOSE OF INCOME TAX HE HAS CLAIM SAID EXPENDITURE IN THE COMPUTATION OF INCOME BUT D ISALLOWED ITSELF A SUM OF ` 106 62 84 312/- AS NO TAX HAS BEEN DEDUCTED AT SOU RCE DURING THE IMPUGNED ASSESSMENT YEAR BUT CLAIMED REM AINING SUM OF ` 154 23 19 088/- AS REVENUE EXPENDITURE. THE ASSES SING OFFICER WAS OF THE VIEW THAT THE ASSESSEE IS ELIGIBLE ONLY FOR ONE FIFTH OF ` 154 23 19 088/- AS PER THE PROVISIONS OF SECTION 35 DDA AMOUNTING TO ` 30 84 63 818/- IN THE YEAR UNDER CONSIDERATION AND THE REMAINING AMOUNT IS TO BE ALLOWED IN EQUAL INSTALLM ENTS OVER THE PERIOD OF FOUR IMMEDIATELY SUCCEEDING ASSESSMENT YE ARS. 34. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 35DDA. WE NOTED THAT THE SAID PROVISION IS APPLICABLE ONLY IF THE ASSESSEE HAS INCURRED ANY EXPENDITURE IN ANY PREVIOUS YEAR B Y WAY OF PAYMENT OF ANY SUM TO A EMPLOYEE IN CONNECTION WITH VOLUNTARY RETIREMENT. IN THIS CASE WE NOTED THAT THE ASSESS EE HAS NOT INCURRED ANY EXPENDITURE BY WAY OF PAYMENT MADE TO EMPLOYEES BUT THE PAYMENT HAS BEEN MADE BY THE ASSESSEE TO AI RPORTS AUTHORITY OF INDIA IN ACCORDANCE WITH CLAUSE 6.14 O F THE OMDA ON ACCOUNT OF RETRENCHMENT COMPENSATION TO BE PAID BY AIRPORTS AUTHORITY OF INDIA TO ITS EMPLOYEES. IT IS NOT AN AMOUNT WHICH THE ASSESSEE IS PAYING TO ITS EMPLOYEES ON THEIR RETREN CHMENT. THEREFORE THE PROVISIONS OF SECTION 35DDA WILL NOT APPLY. IT IS NOT MUMBAI INTERNATIONAL AIRPORT P LTD. 19 DENIED THAT THE EXPENDITURE INCURRED BY THE ASSESSE E IS REVENUE EXPENDITURE. WE NOTED THAT THE CIT(A) WHILE DEALING WITH THE ISS UE FOLLOWING THE ORDER OF HIS PREDECESSOR IN THE ASSESSEES OWN CASE FOR A.YS . 2010-11 AND 2011-12 DELETED THE SAID DISALLOWANCE. 7. FACTS AND CIRCUMSTANCES BEING IDENTICAL AND BEIN G CONSISTENT WITH THE VIEW TAKEN BY US IN THE ASSESSEES OWN CASE FOR A.Y S. 2010-11 AND 2011-12 WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE C IT(A) DELETING THE DISALLOWANCE. IT IS ACCORDINGLY UPHELD. THE GROUN D TAKEN BY THE REVENUE STANDS DISMISSED. 8. GROUND NO.5 RELATES TO THE TREATMENT OF DEVELOPM ENT AMOUNTING TO ` 25 98 50 335/- AS CAPITAL RECEIPT. BOTH THE PARTIE S AGREED THAT IDENTICAL ISSUE HAD ARISEN IN THE CASE OF THE ASSESSEE FOR A.YS. 20 10-11 AND 2011-12 AND WHATEVER VIEW IS TAKEN THEREIN SHALL BE APPLICABLE TO THIS YEAR ALSO. WE FIND THAT THE TRIBUNAL VIDE ITS CONSOLIDATED ORDER DATED 13.11.2017 FOR A.YS 2009- 10 2010-11 AND 2011-12 HAS DECIDED THE ISSUE IN FA VOUR OF THE ASSESSEE BY OBSERVING AS UNDER: 37. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE C AREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE AU THORITIES BELOW. THE LEARNED DR RELIED ON THE ORDER OF THE ASSESSING OFFICER WHILE THE LEARNED AR VEHEMENTLY CONTENDED THAT THE SAID D EVELOPMENT FEES HAS BEEN COLLECTED WITH THE PERMISSION OF THE MINISTRY OF CIVIL AVIATION PURSUANT TO THE PROVISIONS OF RULE 22A OF THE AIRPORTS AUTHORITY OF INDIA ACT 1994 AND ARE IN THE NATURE OF CESS OR TAX TO MET THE SHORTFALL THAT ARISE IN THE DEVELOPMENT OF AERONAUTICAL MUMBAI INTERNATIONAL AIRPORT P LTD. 20 ASSETS. THE DEVELOPMENT FEES SO COLLECTED ARE UTIL IZED ONLY FOR PURPOSE OF DEVELOPMENT OF CAPITAL ASSETS AND THE SA ME IS CERTIFIED BY THE CHARTERED ACCOUNTANT. THEREFORE THE SAID I NCOME IS A CAPITAL RECEIPT. WE NOTED THAT THE CIT(A) HAS ELAB ORATELY DISCUSSED THE PROVISIONS OF THE AGREEMENT ENTERED BETWEEN BOT H THE PARTIES AND HAS HELD AS UNDER: 9.5 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPEL LANT AND THE ORDER OF THE AO. THE APPELLANT IS ENGAGED IN O PERATING MANAGING DEVELOPING DESIGNING CONSTRUCTING UPGR ADING MODERNIZING AND FINANCING THE CHHATRAPATI SHIVAJI INTERNATIONAL (CSI) AIRPORT OF MUMBAI UNDER AN AG REEMENT KNOWN AS 'OMDA'' WITH AIRPORT AUTHORITY OF INDIA (' AAI'). THE ESTIMATED COST FOR MODERNIZING AND DEVELOPMENT OF CSI AIRPORT OF MUMBAI WAS RS.9 802/- CRORES. AGAINST TH IS ESTIMATED EXPENDITURE WHICH INCLUDES THE SUBSTANTIA L EXPENDITURE ON ACCOUNT OF CAPITAL EXPENDITURE FOR MODERNIZING AND DEVELOPMENT OF THE AIRPORT THE AVA ILABILITY OF FINANCE FROM VARIOUS MEANS WITH THE APPELLANT WA S LESS BY RS.2 3507- CRORES. THUS THERE WAS A SHORT FALL OF RS.2 350 CRORES. 9.6 IN VIEW OF THE SHORTFALL OF FINANCE REQUIRED FO R THE DEVELOPMENT OF THE AIRPORT WHICH INCLUDES SUBSTANTI AL CAPITAL EXPENDITURE THE APPELLANT APPROACHED THE M INISTRY OF CIVIL AVIATION; GOVERNMENT OF INDIA FOR LEVY OF DEVELOPMENT FEE FOR MEETING OUT THE SAID SHORTFALL AT SUCH RATES AS MAY BE APPROVED BY THE MINISTRY. PURSUANT TO SECTION 22A OF THE AAI ACT 1994 THE MINISTRY HAS CONVEYED THE APPROVAL OF THE CENTRAL GOVERNMENT U/S.22A OF A AI ACT AUTHORIZING THE APPELLANT TO COLLECT THE DEVELOPMEN T FEE VIDE LETTER DATED 27.02.2009 A COPY OF WHICH HAS B EEN FILED BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS. THE APPELLANT HAS BEEN PERMITTED BY THE MINISTRY OF CIV IL AVIATION. GOVERNMENT OF INDIA TO CHARGE FEE OF RS.1 00 FROM DEPARTING DOMESTIC PASSENGERS AND RS.600 FROM DEPAR TING INTERNATIONAL PASSENGERS. THERE ARE CERTAIN CONDITI ONS ATTACHED WITH THE COLLECTION OF DEVELOPMENT FEE. TH E FEE SO COLLECTED HAS TO BE SPENT MAINLY FOR DEVELOPMENT OF 'AERONAUTICAL ASSETS' ONLY. THE APPELLANT CANNOT SP END ANY AMOUNT FROM THE COLLECTED DEVELOPMENT FEE AT WILL A ND HAS TO MAINTAIN AN ACCOUNT OF THE SAME WHICH IS SUBJECT TO SUPERVISION AND AUDIT FROM THE CENTRAL GOVERNMENT. THE APPELLANT HAS BEEN PERMITTED TO COLLECT AMOUNT ONLY FOR 48 MUMBAI INTERNATIONAL AIRPORT P LTD. 21 MONTHS AND THE SAME CANNOT BE EXCEEDED FUNDING GAP OF RS.1 543/- CRORES. THE MINISTRY OF CIVIL AVIATION H AS VIDE F.NO. AV.24011/001/2009-AD DATED FEBRUARY 27 2009 HAD IN PARA (G) TO (J) HAS STATED AS UNDER: '(G) THE AMOUNT COLLECTED THROUGH DF WOULD UNDER NO CIRCUMSTANCES EXCEED THE CEILING OF RS.1543 CORES AND IN CASE OF ANY COST ESCALATION BEYOND RS.9802 CRORES THE AMOUNT REPRESENTING THE ESCALATION WOULD HAVE TO BE BROUGHT IN BY MIAL THROUGH OTHER SOURCES. THE CEILING AMOUNT WOULD BE EXCLUSIVE OF TAXES IF ANY. (H)RATE AND TENURE OF LEVY ARE PREMISED UPON THE TRAFFIC PROJECTIONS AND OTHER ESTIMATES. IN CASE DUE TO ACTUAL FIGURES BEING DIFFERENT THAN THOSE ESTIMATED THE 'COLLECTIONS DURING LEVY PERIOD EXCEED THE AMOUNT OF RS 1543 CRORES OR ANY OTHER AMOUNT WHICH THE REGULATOR/GOVERNMENT MAY DETERMINE THE EXCESS AMOUNT SO COLLECTED SHALL NOT BE UTILIZED FOR ANY PURPOSE WHATSOEVER WITHOUT THE PRIOR APPROVAL OF THE REGULATOR/CENTRAL GOVERNMENT. (I)AN INDEPENDENT AUDITOR APPOINTED BY AAI WOULD AUDIT THE RECEIPTS/ACCRUALS OF MIAL ON PERIODIC BASIS. PERIODICITY OF THE AUDIT WOULD BE DECIDED BY AAI IN CONSULTATION WITH MIAL. AAI WOULD REPORT THE RESULTS OF AUDIT TO GOVERNMENT/ REGULATOR FOR NECESSARY DIRECTIONS. (J)MIAL WOULD UNDERTAKE REAL ESTATE DEVELOPMENT PROGRAMME ON A TIME BOUND BASIS THROUGH COMPETITIVE BIDDING AT THE EARLIEST. IN CASE THE AMOUNT ACTUALLY RECEIVED/RECEIVABLES AS A RESULT OF COMPETITIVE BIDDING IS MORE THAN THE PRESENTLY ESTIMATED AMOUNT OF RS.1 000/- CRORES THE FUNDING GAP OF RS. 1543 CRORES WOULD BE REVISED DOWNWARDS AT THE TIME OF REVIEW.' MUMBAI INTERNATIONAL AIRPORT P LTD. 22 THE ABOVE CLEARLY INDICATES THAT THE GOVERNMENT HAD WORKED OUT THE COLLECTION OF RS. 1543 CRORES IN THE TOTAL GAP OF RS.2 350 CRORES BY FACTORING THAT MIAL CAN EARN AROUND RS.1 000 CRORES THROUGH THE REAL ESTATE DEVELOPMENT PROGRAM. 9.7 AS PER CLAUSE (B) (II) OF THE SAID LETTER THE AAI AND CENTRAL GOVERNMENT WOULD HAVE SUPERVISION POWERS IN RESPECT OF ESCROW ACCOUNT TO ENSURE THAT ALL THE RE CEIPTS ARE PROPERLY ACCOUNTED FOR AND ARE UTILIZED ONLY FOR PE RMITTED PURPOSES. CLAUSE (C) OF THE SAID LETTER PROVIDES TH E ENTIRE DEVELOPMENT FEE RECEIPTS WOULD BE UTILIZED ONLY FOR THE PURPOSE OF DEVELOPMENT OF 'AERONAUTICAL ASSETS' WH ICH ARE 'TRANSFER ASSETS' AS DEFINED UNDER THE OMDA AND THE REFORE WOULD GO TO REDUCE THE ACTUAL COST OF AERONAUTICAL ASSETS TO THAT EXTENT. I ALSO NOTICE THAT CLAUSES (B) (III) O F THE SAID LETTER DATED 27.02.2009 SPECIFICALLY PROVIDES THAT DF WOULD BE SUBJECT TO AAI'S SUPERVISION FROM TIME TO TIME. FURTHER CLAUSE (G) OF THIS LETTER STIPULATES THAT THE AMOUN TS COLLECTED THROUGH DEVELOPMENT FEE WOULD UNDER NO CIRCUMSTANCE S EXCEED THE CEILING OF RS. 1 543 CRORES AND IN CASE OF COST ESCALATION BEYOND RS. 9 802 CRORES THE ESCALATION W OULD HAVE TO BE BROUGHT IN BY THE APPELLANT THROUGH OTHE R SOURCES. CLAUSE (H) OF THE SAID LETTER PROVIDES THA T IN CASE OF EXCESS COLLECTION THE SAME CANNOT BE UTILIZED BY T HE APPELLANT FOR ANY PURPOSE WHATSOEVER WITHOUT THE PR IOR APPROVAL OF REGULATOR OR THE GOVERNMENT. FURTHER C LAUSE (H) OF THE SAID LETTER ALSO STIPULATES FOR DOWNWARD REVISION OF THE AMOUNT OF DEVELOPMENT FEE TO BE CALCULATED IN C ERTAIN CASE. 9.8 BASED ON THE ABOVE IT IS EVIDENT THAT THE LEVY OF DEVELOPMENT FEE IS SOLELY FOR THE PURPOSE OF BRIDGI NG THE FUNDING GAP IN CONNECTION WITH THE DEVELOPMENT OF AERONAUTICAL ASSETS. FOR CONVENIENCE SUCH DEVELOPM ENT FEE WOULD BE COLLECTED BY VARIOUS AIRLINES AT THE T IME THEY SELL THE TICKETS TO THE PASSENGERS AND WOULD BE PAI D TO APPELLANT. ACCORDINGLY THE AIRLINES ARE COLLECTING THE DEVELOPMENT FEE LEVIED U/S 22A OF AAI ACT FROM THE PASSENGERS AND PAYING THE SAME TO THE APPELLANT TOW ARDS MEETING THE FUNDING GAP FOR DEVELOPMENT OF AERONAUT ICAL ASSETS WHICH ARE TRANSFER ASSETS AS PER OMDA. IN SU PPORT OF THE CONTENTION THAT THE DEVELOPMENT FEE SO COLLECTE D HAS BEEN UTILIZED ONLY FOR THE DEVELOPING THE CAPITAL A SSETS I.E. AERONAUTICAL ASSETS A COPY OF THE CERTIFICATE FROM A MUMBAI INTERNATIONAL AIRPORT P LTD. 23 CHARTERED ACCOUNTANT HAS BEEN PLACED ON RECORD CERT IFYING THE UTILISATION OF DEVELOPMENT FEE FOR CONSTRUCTION OF AERONAUTICAL ASSETS AS PER PROVISIONS PRESCRIBED U/ S 22 A OF THE AAI ACT. 9.9 THE APPELLANT HAS PLACED STRONG RELIANCE ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CONSUMER ONLINE FOUNDATION VS UNION OF INDIA & OTHERS (2011 5 SCC 360) WHERE HON'BLE SUPREME COURT BUS CATEGORICALLY MADE THE DISTINCTION BETWEEN SECT ION 22 AND SECTION 22A OF AAI ACT. IN THE SAID JUDGMENT H ON'BLE SUPREME COURT HAS ALSO HELD THAT DEVELOPMENT FEE IS IN THE NATURE OF CESS OR TAX FOR GENERATING REVENUE FOR TH E SPECIFIC PURPOSES MENTIONED IN CLAUSE (A) (B) AND (C) OF SE CTION 22A OF AAI ACT. THE HON'BLE SUPREME COURT IN THE SA ID DECISION HELD THAT THE NATURE OF LEVY U/S.22A OF 20 04 ACT IS NOT CHARGES OR ANY OTHER CONSIDERATION FOR SERVICES FOR THE FACILITIES PROVIDED BY THE AIRPORTS AUTHORITY. THE SUPREME COURT IN THIS JUDGMENT ALSO QUOTED FROM THE DECISIO N IN THE CASE OF VIJAYALASHMI RICE MILLS & ORS. V. COMMERCIA L TUX OFFICERS PALAKOT & ORS. (SUPRA) THAT A CESS IS A T AX WHICH GENERATES REVENUE WHICH IS UTILIZED FOR A SPECIFIC PURPOSE. THE LEVY UNDER SECTION 22A OF AAI ACT THOUGH DESCRI BED AS FEES IS REALLY IN THE NATURE OF A CESS OR A TAX FOR GENERATING REVENUE FOR THE SPECIFIC PURPOSES MENTIONED IN CLAU SES (A) (B) AND (C) OF SECTION 22A OF AAI ACT. FURTHER THE APPELLANT ALSO CONTENDED ONCE THE SC HAS HELD THAT THE DEVELO PMENT FEE IS IN THE NATURE OF TAX OR CESS NO FURTHER TAX CAN BE LEVIED ON THE SAME TREATING THE SAME AS INCOME OF T HE APPELLANT. I FIND THE RELIANCE OF THE APPELLANT ON THE SAID SUPREME COURT DECISION IS A GOOD RELIANCE AND THE S AME IS SQUARELY APPLICABLE TO THE FACTS OF THE APPELLANT'S CASE AND THEREFORE DEVELOPMENT FEE COLLECTED BY THE APPELLA NT IS IN THE NATURE OF CESS OR TAX AND A CAPITAL RECEIPT AND IT CANNOT BE SUBJECTED TO FURTHER TAX. 9.10 DURING THE APPELLATE PROCEEDINGS BEFORE ME TH E APPELLANT WAS ASKED TO CLARIFY AS TO HOW DEVELOPMEN T FEE AND TOLL CHARGES ARE NOT SIMILAR IN NATURE. THE APP ELLANT MADE A DETAILED SUBMISSION IN THE MATTER CLEARLY B RINGING OUT THE DISTINGUISHING FACTORS BETWEEN DEVELOPMENT FEE AND TOLL CHARGES. AFTER A CAREFUL PERUSAL OF THE DISTINGUISHING FACTORS BETWEEN THE TWO I FIND THAT THE DEVELOPMENT FEE AND TOLL CHARGES ARE BEING LEVIED A ND COLLECTED ENTIRELY ON DIFFERENT FOOTINGS AND CONTEX T. THE MUMBAI INTERNATIONAL AIRPORT P LTD. 24 ORIGIN OF THE DEVELOPMENT FEE IS FROM THE PROVISION OF SECTION 22A OF THE AAI 1994 AND THE SAME IS HELD T O BE CESS OR TAX AND TO BE USED STRICTLY FOR THE PURPOSE OF SUB- SECTION (A) (B) & (C) OF SECTION 22A OF AAI ACT. T HUS 1 NOTICE THAT THE COLLECTION OF DEVELOPMENT FEE HAS A LEGAL BACKING AND IN THE NATURE OF CESS OR TAX BEING COLL ECTED WITH THE APPROVAL OF MINISTRY OF CIVIL AVIATION GOVERNM ENT OF INDIA/ REGULATORY AUTHORITY AS PRESCRIBED U/S.22A O F THE ACT. THIS VIEW HAS BEEN CONFIRMED BY THE HON'BLE SU PREME COURT IN THE CASE OF CONSUMER ONLINE FOUNDATION VS. UOI & ORS (SUPRA). SO FAR AS THE COLLECTION OF TOLL CHARG ES IS CONCERNED THE SAME IS COLLECTED TO RECOVER THE CAP ITAL COST OPERATING AND MAINTAINING COST ALONG WITH PROFIT. T HE TOLL CHARGES ARE DETERMINED AS PER THE POLICY OF THE GOVERNMENT OF INDIA AND ARE NOT IN THE NATURE OF TA X OR CESS. THE TOLL CHARGES ARE TREATED AS REVENUE RECEI PTS IN THE HANDS OF DEVELOPER. LETTER DATED 27.02.2009 REC EIVED FROM THE MINISTRY OF CIVIL AVIATION WHICH IS ON REC ORD INDICATES THAT DEVELOPMENT FEE IS A CAPITAL RECEIPT . 9.11 I FURTHER NOTICE THAT AIRPORT REGULATOR HAS CL EARLY MENTIONED IN ITS ORDER THAT FOR THE PURPOSE OF ALLO WING RETURN TO AIRPORT OPERATOR IT WILL CONSIDER ASSET BASE (RAB) NET OFF DEVELOPMENT FEE AMOUNT AND NO DEPRECIATION WILL BE ALLOWED ON SUCH ASSETS. I FURTHER FIND FROM THE LETTER DATED 18.12.2012 OF AIRPORT AUTHORITY OF INDIA ADDR ESSED TO THE DIRECTOR MINISTRY OF CIVIL AVIATION WHICH WAS PLACED ON RECORD WHEREIN IT IS MENTIONED THAT THE TREATMENT OF DEVELOPMENT FEE SHOULD BE AS PER THE GUIDELINES GIV EN IN AS-12 - ACCOUNTING FOR GOVERNMENT GRANTS ISSUED BY THE INSTITUTE OF 'CHARTERED ACCOUNTANTS REGARDING GRANT AGAINST THE ASSETS. THE ANOTHER IMPORTANT AND DISTINGUISHIN G FACTOR IS THAT THE COLLECTION OF DEVELOPMENT FEE IS REQUIR ED TO BE KEPT IN A SEPARATE ESCROW ACCOUNT AND SUBJECT TO SE VERAL RESTRICTIONS WHEREAS THERE IS NO SUCH STIPULATION I N THE CASE OF TOLL CHARGES. THE TOLL CHARGES COVER OPERATING A ND MAINTENANCE COST OF A PARTICULAR FACILITY AND THE Q UANTUM OF THE SAME IS FIXED AS PER THE POLICY OF THE GOVERNME NT OF INDIA. 9.12 LOOKING TO THE DISTINGUISHING FACTORS BETWEEN THE DEVELOPMENT FEE AND TOLL CHARGES I FIND THAT THERE IS NO SIMILARITY AT ALL. THE TOLL CHARGES BY ITSELF IS A REVENUE RECEIPT EMBEDDED WITH THE RECOVERY OF THE COST OF T HE MUMBAI INTERNATIONAL AIRPORT P LTD. 25 ASSETS ADMINISTRATIVE EXPENSES AS WELL AS THE PROF ITS AND THE SAME IS COLLECTED AFTER THE ASSET IS CREATED AN D PUT TO USE. THE DEVELOPMENT FEE IS COLLECTED UNDER THE AUT HORITY OF A LAW MEANT FOR UTILIZATION OF SPECIFIC PURPOSES AND PRIOR TO CREATION OF ASSETS. THE APPELLANT'S HANDS ARE CO MPLETELY TIED IN UTILIZING THE DEVELOPMENT FEE WHEREAS THE S AME IS NOT THE CASE OF TOLL CHARGES. THUS THE DISTINGUISH ING FACTORS CLEARLY PLACE THE DEVELOPMENT FEE IN THE CA TEGORY OF CAPITAL RECEIPTS AND NOT REVENUE RECEIPTS. 9.13 LOOKING TO THE FACTS OF THE CASE IN ITS ENTIRE TY I FIND THAT DEVELOPMENT FEE COLLECTED BY THE APPELLANT WIT H THE PERMISSION FROM THE MINISTRY OF CIVIL AVIATION GOV ERNMENT OF INDIA UNDER THE PROVISIONS OF 22A OF AAI ACT 200 4 IS A RECEIPT IN THE NATURE OF CESS OR TAX AND IN THE NAT URE OF CAPITA! RECEIPT. FURTHER THE SAME HAS BEEN ALREADY CONSIDERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CONSUMER ONLINE FOUNDATION VS UNION OF INDIA & OTHE RS CITED SUPRA WHEREIN IT HAS BEEN HELD THE DEVELOPME NT FEE IS A RECEIPT IN THE NATURE OF CESS OR TAX FOR GENER ATING REVENUE FOR THE SPECIFIC 'PURPOSES MENTIONED IN CLA USE (A) (B) & (C) OF SECTION 22A OF THE AAI ACT. FURTHE R IT IS PERTINENT TO NOTE ONCE AMOUNT HELD TO BE IN THE NAT URE OF TAX IT CANNOT BE SUBJECT TO FURTHER TAX. IT IS ALS O SEEN THAT VARIOUS RESTRICTIONS HAVE ALSO BEEN IMPOSED BY THE CENTRAL GOVERNMENT TO ENSURE THAT THE DEVELOPMENT FEE SO COLLECTED IS UTILIZED ONLY FOR THE PURPOSE OF DEVEL OPMENT OF 'AERONAUTICAL ASSETS' AS PER PROVISIONS OF SECTION 22A OF THE AAI ACT. FURTHER A CERTIFICATE FROM A CHARTERED AC COUNTANT HAS ALSO BEEN PLACED ON RECORD CERTIFYING THE UTILI ZATION OF THE DEVELOPMENT FEE SO COLLECTED ONLY FOR THE PURPO SES OF ACQUIRING /CONSTRUCTING THE AERONAUTICAL ASSETS. AC CORDINGLY THE COLLECTION OF DEVELOPMENT FEE IS THEREFORE MEA NT ONLY FOR SPECIFIC PURPOSE OF ACQUISITION / CONSTRUCTION OF CAPITAL ASSETS AND THEREFORE IT IS ON CAPITAL ACCOUNT AND NOT ON REVENUE ACCOUNT. THUS THE NATURE OF THE RECEIPT IS CAPITAL AND NOT REVENUE. ACCORDINGLY I HOLD THAT THE RECEI PTS OF RS.2 87 83 48 538/- ON ACCOUNT OF DEVELOPMENT FEE B EING IN THE NATURE OF TAX OR CESS IS A CAPITAL RECEIPT A ND THEREFORE THE SAME CANNOT BE BROUGHT TO TAX. ACCORDINGLY THE ADDITION OF RS.286 30 14 565/- IS DELETED. THE AO I S ALSO DIRECTED TO REDUCE AN AMOUNT OF RS.19 85 99 146/- F ROM THE BLOCK OF BUILDING AND RS.700 70 264 FROM THE BLOCK OF PLANT & MACHINERY AND RECOMPUTED THE DEPRECIATION AFTER T HE SAID MUMBAI INTERNATIONAL AIRPORT P LTD. 26 REDUCTION AS CLAIMED BY THE APPELLANT IN THE RETURN OF INCOME. ACCORDINGLY GROUND NOS. 11 AND 12 ARE ALLO WED. 38. WE FIND THAT THE CIT(A) HAS ELABORATELY DISCUSS ED THE PROVISIONS OF SECTION 22A OF AIRPORTS AUTHORITY OF INDIA ACT 1994 UNDER WHICH THE ASSESSEE HAS COLLECTED THE DEVELOPM ENT FEES AND ALSO THE TERMS AND CONDITIONS ATTACHED TO THE SAID COLLECTION AS WELL AS ITS UTILIZATION. NOT ONLY THIS THE CIT(A) HAS ALSO REFERRED TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CO NSUMER ONLINE FOUNDATION VS. UNION OF INDIA & OTHERS [2011] 5 SCC 350 (SC) WHERE THE APEX COURT HAS CATEGORICALLY MADE THE DIS TINCTION BETWEEN SECTION 22 AND SECTION 22A OF AIRPORTS AUTH ORITY OF INDIA ACT. IN THE SAID JUDGMENT THE HONBLE SUPREME COU RT HAS ALSO HELD THAT DEVELOPMENT FEES IS IN THE NATURE OF CESS OR TAX FOR GENERATING REVENUE FOR SPECIFIC PURPOSES AS MENTION ED IN SECTION 22A(A) TO SECTION 22A(C) OF THE AIRPORTS AUTHORITY OF INDIA ACT. IN THE SAID JUDGMENT IT WAS HELD THAT THE NATURE OF LE VY U/S. 22A OF 2004 ACT IS NOT CHARGES OR ANY OTHER CONSIDERATION FOR SERVICES FOR THE FACILITIES PROVIDED BY THE AIRPORTS AUTHORITY. THE LEARNED DR EVEN THOUGH RELIED ON THE ORDER OF THE ASSESSING OF FICER HE DID NOT DENY THE INTERPRETATION GIVEN BY THE HONBLE SUPREM E COURT IN RESPECT OF SECTION 22A OF THE AIRPORTS AUTHORITY OF INDIA ACT. IT IS NOT DENIED THAT THE DEVELOPMENT FEES SO COLLECTED A RE UTILIZED ONLY FOR THE PURPOSE OF AERONAUTICAL ASSETS AS PER THE P ROVISIONS OF SECTION 22A OF THE AIRPORTS AUTHORITY OF INDIA ACT. IN VIEW OF THIS FACT WE DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORDER OF THE CIT(A) WHICH WARRANT OUR INTERFERENCE WHILE HOLDI NG THAT THE DEVELOPMENT FEES SO RECEIVED BY THE ASSESSEE IS A C APITAL RECEIPT. WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) AND DISMISS GROUND NOS.10 & 11 IN A.Y. 2010-11 AND GROUND NO.5 IN A.Y . 2011-12. THIS DISPOSES OF ALL THE GROUNDS IN THE REVENUES A PPEAL FOR A.Y. 2010-11. WE NOTED THAT THE CIT(A) WHILE DEALING WITH THE ISS UE FOLLOWING THE ORDER OF HIS PREDECESSOR IN THE ASSESSEES OWN CASE FOR A.YS . 2010-11 AND 2011-12 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 7. FACTS AND CIRCUMSTANCES BEING IDENTICAL AND BEIN G CONSISTENT WITH THE VIEW TAKEN BY US IN THE ASSESSEES OWN CASE FOR A.Y S. 2010-11 AND 2011-12 MUMBAI INTERNATIONAL AIRPORT P LTD. 27 WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE C IT(A) IN HOLDING THE RECEIPT AS CAPITAL RECEIPT. IT IS ACCORDINGLY UPHELD. THE GROUND TAKEN BY THE REVENUE STANDS DISMISSED. 8. GROUND NO.6 RELATES TO THE DELETION OF THE DISAL LOWANCE U/S. 14A READ WITH RULE 8D. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE AUTHORITIES B ELOW. WE NOTED THAT THE ASSESSEE HAS NOT DERIVED ANY EXEMPT INCOME DURING T HE IMPUGNED ASSESSMENT YEAR. BOTH THE PARTIES AGREED THAT IDEN TICAL ISSUE HAD ARISEN IN THE CASE OF THE ASSESSEE FOR A.YS. 2010-11 AND 2011 -12 AND WHATEVER VIEW IS TAKEN THEREIN SHALL BE APPLICABLE TO THIS YEAR ALSO . WE FIND THAT THE TRIBUNAL VIDE ITS ORDER OF DATED 13.11.2017 IN THE A.YS 200 9-10 2010-11 AND 2011- 12 RELYING ON THE DECISION OF THE HONBLE DELHI HIG H COURT IN THE CASE OF CHEMINVEST LTD. 378 ITR 33 (DEL) AND THAT OF HONBL E BOMBAY HIGH COURT (NAGPUR BENCH) IN THE CASE OF PRINCIPAL CIT VS. BAL LARPUR INDUSTRIES LIMITED IN ITA NO. 51/2016 DATED 13.10.2016 HAS CONFIRMED THE DELETION OF THE DISALLOWANCE MADE U/S. 14A READ WITH RULE 8D BY THE LEARNED CIT(A). FACTS AND CIRCUMSTANCES BEING SIMILAR WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). IT IS ACCORDINGLY UPHELD AND THE G ROUND IS DISMISSED. 9. GROUND NO.7 IN REVENUES APPEAL RELATES TO THE R ATE OF DEPRECIATION ALLOWED ON TAXIWAYS APRONS PARKING BAYS AND BRIDG ES @15% INSTEAD OF 10%. WE FIND THAT THE CIT(A) WHILE ALLOWING DEPRE CIATION @15% ON TAXIWAYS APRONS PARKING BAYS AND BRIDGES HAS FOL LOWED THE DECISION OF THE MUMBAI INTERNATIONAL AIRPORT P LTD. 28 TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2007-08 IN ITA NO. 7111/MUM/2011 WHEREIN IT HAS OBSERVED AS UNDER: 35. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF AUTHORITIES BELOW AND SUBMISSIONS OF LD. REPRE SENTATIVES OF THE PARTIES. THERE IS NO DISPUTE TO THE FACTS THAT RUNWAY TAXIWAY ARE NECESSARY PART OF AIRPORT OPERATION AND ARE SPECIFIC PART OF INFRASTRUCTURE FOR USE OF AIRCRAFTS. THESE ARE NOT MERELY CONCRETE STRUCTURES. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V/S MAZ AGAON DOCK LTD (1991) 191 ITR 460(BOM) HAS HELD TH AT DRY DOCK AND WET DOCK CREATED FOR SHIPS ARE TO BE TREATED AS PLANT AND NOT BUILDING. THE HONBLE APEX COURT HAS HELD IN THE CASE OF KARNATAKA POWER CORPN. ( SUPRA) THAT POWER GENERATING STATION BUILDING IS NOT A SIMPLY CONCRETE STRUCTURE BUT A SPECIALLY DESIGNED BUILD ING AND IS TO BE TREATED AS PART OF PLANT. SIMILARLY THE HONBLE APEX COURT HAS HELD IN THE CASE OF DR. B. VENKATA RAO (SUPRA) THAT THE OPERATION THEATRE IN AN HOSPITAL BUILDING IS NOT SIMPLY A CONCRETE STRUCTURE B UT 30 NECESSARILY A PART FOR RUNNING OF THE HOSPITA L AND THE ASSESSEE IS ENTITLED TO CLAIM DEPRECIATION AS APPLICABLE TO PLANT AND MACHINERY. IF WE APPLY THE ABOV E DECISIONS TO THE FACTS OF THE CASE BEFORE US WE ARE OF THE CONSIDERED VIEW THAT TAXIWAYS AND APRONS PARKING BAYS CANNOT BE SAID TO BE MERELY CONCRETE S TRUCTURES BUT ARE NECESSARY TOOLS FOR OPERATING/USING THE AIR PORT. HENCE THE SAME ARE TO BE CONSIDERED AS PART OF PLANT AND MACHINERY. THEREFORE WE HOLD THAT ASSESSEE IS ENTITLED FOR DEPRECIATION AT THE RATE AS APPLICABLE ON PLANT AND MACHINERY IN RESPECT OF TAXIWAYS APRONS PAR KING BAYS ETC. HENCE GROUND NO.2 OF THE APPEAL TAKEN BY ASS ESSEE IS ALLOWED. FOLLOWING THE SAID ORDER OF THE TRIBUNAL WE HAVE AL LOWED THE ASSESSEE DEPRECIATION @15% FOR A.YS. 2009-10 2010-11 AND 20 11-12 ALSO. FACTS AND CIRCUMSTANCES BEING SIMILAR AND RESPECTFULLY FOLLOW ING THE ORDER OF THE TRIBUNAL IN THE ASESSEES OWN CASE WHICH HAS BEEN RELIED UPON BY THE MUMBAI INTERNATIONAL AIRPORT P LTD. 29 CIT(A) WE SEE NO REASON TO INTERFERE WITH THE IMPU GNED ORDER. WE UPHOLD THE SAME AND DISMISS THE GROUND RAISED BY THE REVEN UE. 10. IN THE RESULT ASSESSEES APPEAL IS ALLOWED AND REVENUES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH DAY OF NOVEMBER 2017. SD/- SD/- (PAWAN SINGH) (P K BANSAL) JUDICIAL MEMBER VICE-PRESIDENT MUMBAI; DATED: 27 TH NOVEMBER 2017 SA COPY OF THE ORDER FORWARDED TO : 1. THE APP ELL ANT. 2. THE RESPONDENT. 3. T HE CIT(A) MUMBAI 4. THE CIT 5. DR B BENCH ITAT MUMBAI BY ORDER #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI