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Deferral of depreciation allowance does not result into any concealment of income or furnishing of any inaccurate particulars, the Income Tax Appellate Tribunal has held while setting aside the penalty imposed on eminent lawyer Harish Salve for alleged concealment of income as it said his tax payments running into crores show his intention to be tax compliant.
Depreciation on goodwill has been a matter of considerable debate. Although the Supreme Court, in its landmark judgment in the case of Smifs Securities, held that goodwill is an intangible asset within the meaning of section 32 of the Income-tax Act, 1961 (the Act) and depreciation on goodwill is allowable under the section, some judgments have held otherwise, making the issue a highly debatable one.
Depreciation on right to collect toll being infrastructure and not on toll road, where cost incurred for development and construction of infrastructure facility was a right in nature of intangible asset falling within purview of section 32(1)(ii). Order of AO in amortizing expenditure over period of facility and allowing the same was reversed. AO was, thus, directed to allow claim of assessee vis-a-vis depreciation on intangible asset under section 32(1)(ii).
A division bench of the Bombay High Court in CIT Vs. M/s.Urban Infrastructure Venture Capital Ltd has allowed a tenants’ claim for depreciation towards capital expenditure incurred on the leased premises.
Where assessee, under a bona fide belief that UID kit being a part of computer claimed depreciation at 60%. Tribunal held that disallowance of claim would not result in levy of penalty under section 271(1)(c).
As assessee was not the owner of toll road, but had been given the right to develop, maintain and operate the toll road and to further collect the toll for the specified period, then this right was an intangible asset falling under section 32(1)(ii) and expenditure on development, construction and maintenance of infrastructure facility as incurred by the assessee was not revenue in nature and therefore, could be amortized.
For any right to be in the nature of business or commercial right as laid down in section 32(1)(ii) of the Act, two criteria should be met. First that it should be right in rem and the second it should be alienable or transferable.
Gotanagar Truck Terminus is a plant and not building, for the purpose of claiming depreciation under Section 32 read with Section 43 of the IT Act. Consequently the assessee is held entitled to depreciation at the rate of 25% as prescribed for plant and not at 10%, as applicable for building.
It is only when the assessee holds a lease right or other right of occupancy and any capital expenditure is incurred by the assesee on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension of or improvement to the building and the expenditure on construction is incurred by the assessee, that assessee would be entitled to depreciation to the extent of any such expenditure incurred.
Business of the assessee is carried on in the leased property and any expenditure is incurred on the construction of any structure by way of renovation, extension or improvement, then, section 32 will apply and accordingly, the assessee can claim depreciation on the value spent on such improvement or changes in the structure.
