JUDGMENT judgment of court was delivered by S. C. Dharmadhikari J.-This is appeal by assessee challenging order passed by Income-tax Appellate Tribunal, Bench at Mumbai, dated August 30, 2011, in Income Tax Appeal No. 3978/Mum/2010. assessment year in question is 2005-06. order of Commissioner of Income-tax under section 263 of Income-tax Act, 1961 (for short "the Act"), dated March 17, 2010, was under challenge before Tribunal and at instance of appellantassessee. Commissioner had exercised his powers under above provision and held that assessment made by Assessing Officer is erroneous and prejudicial to interests of Revenue. appeal raises substantial question of law and which is formulated as under: "(i) Whether, on facts and in circumstances of case and in law, Tribunal was justified in confirming order passed by Commissioner of Income-tax under section 263 of Income-tax Act, 1961, directing Assessing Officer to examine allowability of depreciation on toll road?" Mr. Pinto, learned counsel, waives service on behalf of Revenue. By consent of both parties, appeal is taken up for final hearing. assessee is company incorporated under Companies Act, 1956, having its registered office at address mentioned in cause title. It is engaged in business of infrastructure development. It is common ground that assessee executed concession agreement on November 20, 2001, with National Highway Authority of India (NHAI) to construct road styled as toll road from km 515 to km 592 in Dharwad Maharashtra border section of National Highway No. 4 in State of Karnataka. That was to be constructed and maintained on build, operate and transfer (BOT) basis on land owned by Government. In terms of this agreement, appellant had to construct toll road and, thereafter, maintain and operate it for period of 17 years and 6 months which is known as concession period. At end of this period, toll road is required to be handed over to NHAI free of cost. appellant claimed that it was owner of toll road and entire cost incurred for construction thereof was capitalised by appellant in its books in assessment year 2005-06 during which construction of toll road was completed. As assessment year under consideration was first year when road became operational, appellant claimed depreciation of Rs. 59.92 crores at rate of 10 per cent. on capitalised cost of toll road. appellant also filed necessary details of claim of depreciation and note was appended to depreciation schedule stating that though appellant was entitled to higher claim of depreciation on toll road, claim is made at rate of 10 per cent. right to claim higher depreciation is reserved. appellant relied upon standard concession document of National Highway Authority of India and clause therein that "for purpose of claiming tax depreciation, property representing capital investment made by concessionaire shall be deemed to be acquired and owned by concessionaire". case of appellant was selected for scrutiny and Assessing Officer examined details of income and expenditure of appellant. He sought certain clarifications and after detailed correspondence and examination of information provided by appellant, he passed order on December 28, 2007. On February 26, 2009, show-cause notice was received by appellant from respondent. notice was under section 263 of Incometax Act and respondent proposed to revise assessment order passed by Assessing Officer as in his opinion Assessing Officer had erred in allowing depreciation on toll road constructed on build, operate and transfer basis. According to him, that resulted in under assessment of income. Annexure D and annexure E are copies of assessment order and show-cause notice. assessee furnished reply to same and submitted that Assessing Officer has applied his mind on particular issue and his view is possible one. Therefore, jurisdiction under section 263 of Income-tax Act cannot be exercised. Further, assessment order was neither erroneous nor prejudicial to interests of Revenue. copy of this reply is at annexure F. There was second showcause notice, copy of which is at annexure G dated December 2, 2009, and that was in relation to further items of income and expenditure. Even in that regard, assessee showed cause and appeared before Commissioner. However, Commissioner, respondent before us, set aside assessment and directed, inter alia, that allowability of depreciation on toll road should be examined again. Aggrieved and dissatisfied with this order of respondent dated March 17, 2010, appeal was filed before Tribunal. By impugned order, Tribunal has held that Assessing Officer has passed order without any examination of issue and in mechanical manner. His order was, therefore, erroneous and prejudicial to interests of Revenue on allowability of depreciation on road. Hence, Commissioner's order was upheld and appeal of assessee was dismissed. Before us, Mr. Irani submitted that appeal raises substantial question of law at least to extent of depreciation on toll roads. He submitted that pages 48 to 52 of paper book would indicate that entire material was before Assessing Officer. This was not case where section 263 of Income-tax Act was applicable and attracted. Apart from same, there is variance between contents of show-cause notice and order of Commissioner of Income-tax. In that regard, he invites our attention to page 55 of paper book and pages 66 and 67 thereof. He submits that if conclusion of Commissioner is contrary to and not based on contents of show-cause notice then Tribunal should have quashed his order. Mr. Irani submits that there is no question of Assessing Officer not applying his mind to claim of depreciation. That is not subject matter of notice either. Thus, there is application of mind by Assessing Officer and merely because his order is brief does not mean that it is erroneous and prejudicial to interests of Revenue. Mr. Irani submits that diversion or difference between allegations in show-cause notice and conclusions reached in order of Commissioner vitiates it completely in law. Mr. Irani also submits that order under section 263 and equally order of Tribunal are factually erroneous. There is application of mind by Assessing Officer and just because there is no detailed discussion therein, does not mean that it should be set aside or that it is necessarily erroneous and prejudicial to interests of Revenue. In that regard, our attention is invited to discussion in Tribunal's order from pages 79 to 82 of paper book. Alternatively, Mr. Irani submits that Assessing Officer's order is correct on merits. view taken by him is possible and plausible view. Therefore, Commissioner should not have set aside his order. Tribunal erred in not setting aside order of Commissioner. For these reasons, he submits that this court be pleased to quash and set aside impugned orders and allow appeal. On other hand, Mr. Pinto, learned counsel, appearing for Revenue submits that Tribunal as also Commissioner has not concluded issue of depreciation against assessee. All that they have done is to direct Assessing Officer to reconsider and re-examine it in accordance with law. Alternatively and without prejudice Mr. Pinto submits that there is no finding or opinion rendered by Assessing Officer. Hence, this is not case of two opinions or any possible opinion being rendered. Mr. Pinto in that regard relies upon paragraph 4.3 of order of Tribunal at pages 81 and 82 of paper book. Mr. Pinto submits that land belongs to sovereign. assessee is merely permitted to enter upon it for purpose of construction and laying of road. At best, assessee could be said to be agent and for limited purpose, namely, to build, operate and later on transfer road. There is no question of assessee claiming any ownership rights. Once this is settled position in law then Commissioner and Tribunal did not commit any error in holding that Assessing Officer' s claim for depreciation is not tenable in law. For all these reasons, appeal be dismissed. With assistance of both sides, we have perused memo of appeal and all annexures thereto. We have also perused relevant statutory provisions. In all fairness, Mr. Irani submits that appeal be decided on reframed question of law. That is with regard to merits of claim of depreciation which was raised by appellant-assessee. In such depreciation which was raised by appellant-assessee. In such circumstances, we would be deciding matter on wider question and as formulated above. In that regard, it is necessary to refer to section 32 of Income-tax Act, 1961. That section reads as under: "32. Depreciation.-(1) In respect of depreciation of- (i) buildings, machinery, plant or furniture, being tangible assets; (ii) know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after 1st day of April, 1998. owned, wholly or partly, by assessee and used for purposes of business or profession, following deductions shall be allowed- (i) in case of assets of undertaking engaged in generation or generation and distribution of power, such percentage, on actual cost thereof to assessee as may be prescribed; (ii) in case of any block of assets, such percentage on written down value thereof as may be prescribed: Provided that no deduction shall be allowed under this clause in respect of- (a) any motor car manufactured outside India, where such motor car is acquired by assessee after 28th day of February, 1975, but before 1st day of April, 2001, unless it is used- (i) in business of running it on hire for tourists; or (ii) outside India in his business or profession in another country; and (b) any machinery or plant, if actual cost thereof is allowed as deduction in one or more years under agreement entered into by Central Government under section 42: Provided further that where asset referred to in clause (i) or clause (ii) or clause (iia), as case may be, is acquired by assessee during previous year and is put to use for purposes of business or profession for period of less than one hundred and eighty days in that previous year, deduction under this sub-section in respect of such asset shall be restricted to fifty per cent. of amount calculated at percentage prescribed for asset under clause (i) or clause (ii) or clause (iia) as case may be: Provided also that where asset being commercial vehicle is acquired by assessee on or after 1st day of October, 1998, but before 1st day of April, 1999, and is put to use before 1st day of April, 1999, for purposes of business or profession, deduction in respect of such asset shall be allowed on such percentage on written down value thereof as may be prescribed. Explanation.-For purposes of this proviso,- (a) expression'commercial vehicle' means'heavy goods vehicle','heavy passenger motor vehicle','light motor vehicle','medium goods vehicle' and'medium passenger motor vehicle' but does not include'maxi cab','motorcab','tractor' and'roadroller'... shall have meanings respectively as assigned to them in section 2 of Motor Vehicles Act, 1988 (59 of 1988): Provided also that, in respect of previous year relevant to assessment year commencing on 1st day of April, 1991, deduction in relation to any block of assets under this clause shall, in case of company, be restricted to seventy five per cent. of amount calculated at percentage, on written down value of such assets, prescribed under this Act immediately before commencement of Taxation Laws (Amendment) Act, 1991 (2 of 1991): Provided also that aggregate deduction, in respect of depreciation of buildings, machinery, plant or furniture, being tangible assets or know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets allowable to predecessor and successor in case of succession referred to in clause (xiii), clause (xiiib) and clause (xiv) of section 47 or section 170 or to amalgamating company and amalgamated company in case of amalgamation, or to demerged company and resulting company in case of demerger, as case may be, shall not exceed in any previous year deduction calculated at prescribed rates as if succession or amalgamation of demerger, as case may be, had not taken place, and such deduction shall be apportioned between predecessor and successor, or amalgamating company and amalgamated company, or demerged company and resulting company, as case may be, in ratio of number of days for which assets were used by them. Explanation 1.-Where business or profession of assessee is carried on in building not owned by him but in respect of which assessee holds lease or other right of occupancy and any capital expenditure is incurred by assessee for purposes of business or profession on construction of any structure or doing of any work in or in relation to, and by way of renovation or extension or, or improvement to, building, then, provisions of this clause shall apply as if said structure or work is building owned by assessee. Explanation 2.-For purposes of this sub-section'written down value of block of assets' shall have same meaning as in clause (c) of sub-section (6) of section 43. Explanation 3.-For purposes of this sub-section, expression'assets' shall mean- (a) tangible assets, being buildings, machinery, plant or furniture; (b) intangible assets, being know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature." bare perusal thereof indicates that in respect of depreciation of buildings, machinery, plant or furniture being tangible assets and with which we concerned, deductions in sub-section (1) of section 32 shall be allowed provided these assets are owned wholly or partly by assessee and used for purpose of his business or profession. Then, there are provisos below clause (ii) of sub- section (1) and it is not necessary to refer to same and except Explanation (3) which is Explanation for purposes of sub-section (1). term "depreciation" as is ordinarily understood and in context of Income-tax Act, 1961, has been considered by hon'ble Supreme Court. In judgment of hon'ble Supreme Court in case of I. C. D. S. Ltd. v. CIT reported in [2013] 350 ITR 527 (SC); AIR 2013 SC 3037, hon'ble Supreme Court was concerned with interpretation of section 32 of Income-tax Act, 1961. hon'ble Supreme Court held as under (page 543 of 350 ITR): "Depreciation is monetary equivalent of wear and tear suffered by capital asset that is set aside to facilitate its replacement when asset becomes dysfunctional. In P. K. Badiani v. CIT [1976] 4 SCC 562; [1976] 105 ITR 642 (SC), this court has observed that allowance for depreciation is to replace value of asset to extent it has depreciated during period of accounting relevant to assessment year and as value has, to that extent, been lost, corresponding allowance for depreciation takes place. Black's Law Dictionary (fifth edition) defines'depreciation' to mean, inter alia: 'A fall in value; reduction of worth. deterioration or loss or lessening in value, arising from age, use, and improvements, due to better methods. decline in value of property caused by wear or obsolescence and is usually measured by set formula which reflects these elements over given period of useful life of property... Consistent gradual process of estimating and allocating cost of capital investments over estimated useful life of asset in order to match cost against earnings...' sixth edition defines it, inter alia, in following ways: 'In accounting, spreading out cost of capital asset over its estimated useful life. decline in value of property caused by wear or obsolescence and is usually measured by set formula which reflects these elements over given period of useful life of property.' Parks in Principles and Practice of Valuation (fifth edition, at page 323) states: As for building, depreciation is measurement of wearing out through consumption, or use, or effluxion of time. Paton has in his Account's Handbook (third edition) observed that depreciation is out of pocket cost as any other costs. He has further observed depreciation charge is merely periodic operating aspect of fixed asset costs. provision on depreciation in Act reads that asset must be'owned, wholly or partly, by assessee and used for purposes of business'. Therefore, it imposes twin requirement of 'ownership' and'usage for business' for successful claim under section 32 of Act... We may now advert to first requirement, i.e., issue of ownership. No depreciation allowance is granted in respect of any capital expenditure which assessee may be obliged to incur on property of others. Therefore, entire case hinges on question of ownership; if assessee is owner of vehicles, then he will be entitled to claim on depreciation, otherwise, not. In Mysore Minerals Ltd. v. CIT [1999] 7 SCC 106; [1999] 239 ITR 775 (SC) this court said thus (page 781 of 239 ITR): '... authorities shows that very concept depreciation suggests that tax benefit on account of depreciation legitimately belongs to one who has invested in capital asset is utilising capital asset and thereby losing gradually investment caused by wear and tear, and would need to replace same by having lost its value fully over period of time.' Black's Law Dictionary (sixth edition) defines'owner' as under: 'Owner. person in whom is vested ownership, dominion, or title of property; proprietor. He who has dominion of thing, real or personal, corporeal or incorporeal, which he has right of enjoy and do with as he pleases, even to spoil or destroy it, as far as law permits, unless he be prevented by some agreement or covenant which restrains his right. term is, however, nomen generalissimum, and its meaning is to be gathered from connection in which it is used, and from subject matter to which it is applied. primary meaning of word as applied to land is one who owns fee and who has right to dispose of property, but terms also included one having possessory right to land or person occupying or cultivating it. term "owner" is used to indicate person in whom one or more interests are vested for his own benefit. person in whom interests are vested has "title" to interests whether he holds them for his own benefit or for benefit of another. Thus, term "title" unlike "owner"...' It defines term'ownership' as: 'Collection of right to use and enjoy property, including right to transmit it to others... right of one or more persons to possess and use thing to exclusion of others. right by which thing belongs to some one in particular, to exclusion of all other persons. exclusive right of possession, enjoyment and disposal; involving as essential attribute right to control, handle, and dispose.' same dictionary defines term'own' as'To have good legal title'. These definitions essentially make ownership function of legal right or title against rest of world. However, as seen above, it is'nomen generalissimum, and its meaning is to be gathered from connection in which it is used, and from subject-matter to which it is applied'." It is in this backdrop that we have to notice facts and circumstances in which claim was raised. Admittedly, assessee is in business of infrastructure development and in course of which it had constructed above referred toll road. There is concession agreement with National Highway Authority of India. question, therefore, is that when person like assessee who is in business of infrastructure development in execution of such agreement constructs road and on build, operate and transfer (BOT) basis on land owned by Government, can it claim depreciation on toll road. When this larger question was posed before authorities, what they have held is that Assessing Officer in allowing such claim has not even considered basic facts rather there is no consideration of claim at all and before granting it. Commissioner came to conclusion that depreciation is allowable on specific assets owned by assessee and used for above purpose. toll road belongs to Government and assessee is not owner of said road. Therefore, depreciation is not allowable on toll road. We do not find that when this notice was issued by Commissioner to assessee under section 263 of Income-tax Act, there has been any divergence or contradiction as complained by Shri Irani. We do not find any basis for complaint that notice and order passed by Commissioner of Income-tax are at variance or that order travels beyond notice. essential foundation for notice is, as noted above. Commissioner issued another show-cause notice on December 2, 2009, and in which also he alleged that claim of depreciation has been erroneously granted and order of Assessing Officer to that extent is erroneous and prejudicial to interests of Revenue. assessee replied to show- cause notice and gave detailed explanation on how claim arises. Hence, there was no prejudice nor can it be said that assessee was in any manner handicapped in dealing with showcause notice. order of Commissioner deals with stand of assessee and in detail. Commissioner held that Assessing Officer had not discussed this claim at all. He has granted it without any application of mind and mechanically. There is justification for such conclusion by Commissioner. Then, Commissioner discussed claim on merits. He found that ownership of road cannot be claimed by assessee. claim of depreciation is not based on treating it as intangible asset with right to use asset without being actual owner thereof. In that regard, Commissioner referred to orders passed by Bombay Bench of Income-tax Appellate Tribunal in case of Reliance Port and Terminals Ltd. and that of Delhi Bench of Tribunal dated December 19, 2008, in case of Noida Toll Bridge Co. and held that, firstly, Assessing Officer did not apply his mind at all and, secondly, toll roads are not owned by assessee and he cannot claim any depreciation thereon. This finding of Commissioner has been confirmed by Income-tax Appellate Tribunal in impugned order and in that behalf Tribunal has held as under: "In this case, assessee who was in business of infrastructure development had constructed road on land taken on lease from Government. Depreciation is allowable only in respect of assets owned by assessee. assessee had claimed depreciation of Rs. 59.92 crores on road which had been allowed by Assessing Officer without any examination. Though Assessing Officer raised queries on many issues, vide letter dated October 16, 2006, placed at page 39 of paper book but there was no query raised on allowability of depreciation. Nor was there any query on this issue in order-sheet or by way of any correspondence. Considering that huge depreciation had been claimed on road constructed on land not owned by assessee, issue was required to be examined by Assessing Officer which was not done. order is, therefore, erroneous and prejudicial to interests of Revenue following judgments cited above. It is not case that Assessing Officer had examined issue by calling for necessary details and by raising relevant queries but failed to discuss issue elaborately in assessment order. judgment of High Court of Bombay in case of Gabriel India (supra), is therefore, not applicable on facts of present case. learned authorised representative for assessee has argued that depreciation was allowable based on some decisions of Tribunal and, therefore, Assessing Officer had taken one of possible views and in such cases order cannot be said to be erroneous and prejudicial to interests of Revenue. Reliance has been on case of Malabar Industrial Co. (supra) in which it has been held that in case Assessing Officer has taken one of possible views, assessment cannot be said to be erroneous and prejudicial to interests of Revenue. But question of taking one of two possible views arises only when Assessing Officer has taken view after necessary examination of issue. In case Assessing Officer has allowed claim mechanically without any examination, it cannot be said that he has taken one of two possible views. It will be case of passing order without any examination which will be obviously erroneous and prejudicial to interests of Revenue... In our view, claim had been allowed by Assessing Officer in very mechanical manner without any examination of issue and, therefore, order was erroneous and prejudicial to interests of Revenue on issue of allowability of depreciation on road." We are in agreement with these findings and conclusions of Tribunal. We called upon Mr. Irani to place before us copy of National Highways Act, 1956, and National Highways Authority of India Act, 1988. Mr. Irani has been kind enough to place them. National Highways Act, 1956, is Act to provide for declaration of certain highways to be national highways and for matters connected therewith. In present case, we are concerned with national highway. Admittedly, it is Dharwad Maharashtra border section from km. 515 to km. 592 of National Highway No. 4 in State of Karnataka which has been constructed by appellant-assessee. Statement of Objects and Reasons to National Highways Act, 1956, and to extent relevant for our purpose reads as under: "Under Entry 23 of Union List, Parliament has exclusive power of legislation with respect to highways which are declared to be national highways by or under law made by Parliament. It is, therefore, proposed that highways comprised in Schedule annexed to this Bill should be declared to be national highways. Such declaration would help Central Government in exercising its powers with respect to development and maintenance of these highways more effectively. Power is also sought to be vested in Central Government to declare, by notification, other highways to be national highways. Power should also be given to Central Government to enter into agreements with State Governments or municipal authorities with respect to development or maintenance of any portion of any national highway and fees may have to be levied in respect of certain types of services rendered on national highways." There has been amendment to National Highways Act, 1956, and by Amendment Act 26 of 1995 several provisions have been inserted in Act and for enabling Central Government to enter into agreement with any person in relation to development and maintenance of whole or in part of national highways. Statement of Objects and Reasons to Amendment Act 26 of 1995 reads as under: "Amendment Act 26 of 1995-Statement of Objects and Reasons.-Proper development of road infrastructure is essential for economic development of country. However, due to constrain of resources, it has not been possible to allocate sufficient funds for development of road sector in country. Therefore, need has been felt to tap private entrepreneurship and private resources in development of road sector. With this in view, Government has taken number of measures like declaration of road sector as industry and infrastructure facility and certain other concessions. number of private investors including foreign investors have shown interest in proposal to open road sector for private investment. However, in absence of enabling provision in National Highways Act, 1956, it is not possible to enter into agreements with private investors for development of roads." bare perusal thereof, would indicate that after policy of globalisation, liberalisation and privatisation, Act has been amended so as to provide for participation of private entities so as to develop and maintain whole or in part of national highways. Naturally, these private entities would have to be involved by enabling authorities to execute agreement with them and which agreement will contains stipulations so as to bind them. development and maintenance will have to be undertaken and in order to allow private entities to be reimbursed costs and expenses incurred by them that Act enables levy of fees and authorises person who has undertaken to develop whole or part of national highways to collect such fees. Further, person who is undertaking such exercise would also be in position to regulate traffic on national highway. With these broad objects, Act has been amended. By section 2 of Act, Central Government can declare each of highways specified in Schedule to be national highway. Then, such highway is deemed to be as such and so as to develop and maintain it and other land for such purpose, Act enables acquisition of private lands and these provisions are inserted from section 3A to section 3J. Section 4 and section 5 of this Act reads as under: "4. National highways to vest in Union.-All national highways shall vest in Union, and for purposes of this act'highways' include- (i) all lands appurtenant thereto, whether demarcated or not; (ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways; and (iii) all fences, trees, posts and boundary, furlong and mile stones of such highways or any land appurtenant to such highways. 5. Responsibility for development and maintenance of national highways.-It shall be responsibility of Central Government to develop and maintain in proper repair all national highways; but Central Government may, by notification in Official Gazette, direct that any function in relation to development or maintenance of any national highway shall, subject to such conditions, if any, as may be specified in notification, also be exercisable by Government of State within which national highway is situated or by any officer or authority subordinate to Central Government or to State Government." By section 8A, Central Government has been empowered to enter into agreements for development and maintenance of national highway and that section reads as under: "8A. Power of Central Government to enter into agreements for development and maintenance of national highways.-(1) Notwithstanding anything contained in this Act, Central Government may enter into agreement with any person in relation to development and maintenance of whole or any part of national highway. whole or any part of national highway. (2) Notwithstanding anything contained in section 7, person referred to in sub-section (1) is entitled to collect and retain fees at such rate, for services or benefits rendered by him as Central Government may, by notification in Official Gazette, specify having regard to expenditure involved in building, maintenance, management and operation of whole or part of such national highway, interest on capital invested, reasonable return, volume of traffic and period of such agreement. (3) person referred to in sub-section (1) shall have powers to regulate and control traffic in accordance with provisions contained in Chapter VIII of Motor Vehicles Act, 1988 (59 of 1988), on national highway forming subject matter of such agreement, for proper management thereof." It is this section which has been inserted by Act 26 of 1995. To our mind, reading of these sections together and harmoniously so also Act as whole, national highways vest in union and for purposes of Act, they include all appurtenant lands whether demarcated or not, all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highways and all fences, trees, posts and boundary, furlong and mile stones appurtenant to such highways are included in term "highways". There is exclusive responsibility of development and maintenance of national highway and which is of Central Government. It is in these circumstances that we find that by section 8A Central Government is empowered to enter into agreement with any person in relation to development and maintenance of whole or any part of national highway but that in no way affects vesting of national highways in Union. Section 8A cannot be said to be overriding section 4 and section 5. It is only for purposes of development and maintenance of whole or any part of national highway through private parties or by involving them that this provision has been inserted. Merely because national highway is built, maintained, managed and operated by private entities does not mean that vesting of national highway in Union is effected. That does not dilute right conferred by section 4 or take away ownership of this highway, meaning thereby, its vesting in union. It is thus, union in which national highway vests and that is all pervasive. National Highways Authority of India Act, 1988, is Act to provide of constitution of authority for development, maintenance and management of national highway's and for matters connected therewith or incidental thereto. Statement of Objects and Reasons to this Act reads as under: "Statement of Objects and Reasons.-The development and maintenance of national highways is fully financed by Central Government as this function comes within Entry 23 of Union List of Seventh Schedule to Constitution. Further, section 5 of National Highways Act, 1956, provides that Central Government may direct that any function in relation to development or maintenance of national highways shall also be exercisable, among others, by any officer or authority subordinate to Central Government. Under this provision, function of execution of field activities including survey, investigations and preparation of projects on national highways have been delegated to respective State Governments, Central Government retaining activities pertaining to planning, approval of design and estimates, monitoring, etc. This system if commonly known as the'agency system' since State Governments are paid'agency charges' incurred by them on works executed on national highway system. 2. Though the'agency system' of execution of national highway works by State Public Works Department has been functioning for period of about 40 years, difficulties have been experienced from time to time. 3. Since Central Government have no direct administrative control over executing agency, there have been instances when Central Government had to remain helpless in case State Government overlooked acts of omission or commission on part of its staff engaged in construction and maintenance of national highways. This has resulted in anomalous situations where Central Government, being constitutionally responsible for development and maintenance of national highways, had to defend actions of State Governments in various forums, including Parliament. Similarly Centre generally has no rule in fixation and operation of even major contracts arbitration cases, payment of compensation to contractors, etc., over and above original contract amounts and other items resulting in direct financial commitment of Central funds. 4. Under circumstances, only alternative is for Centre to take over development and maintenance of national highway system through creation of autonomous National Highways Authority. It is proposed that this Authority should take over, in phased manner functions presently being performed by State Public Works Department. 5. main functions of Authority would be to develop and maintain national highways whose management and operation is vested in Central Government. Some of salient features of Bill are:- (a) Authority, which will be functional body, will consist of Chairman and not more than five full time members to be appointed by Central Government. Central Government may also appoint not more than four part time members; (b) Central Government is being empowered to vest in, or entrust to, Authority such national highways or any stretch thereof, as are vested at present in that Government under section 4 of National Highways Act, 1956; (c) any land required by Authority for discharging its functions will be deemed to be land needed for public purpose and such land may be acquired for Authority under provisions of Land Acquisition Act, 1894, or any corresponding law for time being in force; (d) authority will have powers to enter into and perform any contract up to certain value which will be prescribed by Central Government; (e) Central Government will provide funds to Authority for discharge of its functions; (f) Authority will be responsible for development, maintenance and management of national highways which are vested in it by Central Government; (g) Authority will construct offices, workshops and residential buildings for its employees and construct wayside amenities near national highways vested in it; (h) Authority will, on behalf of Government, be empowered to collect fees for services or benefits rendered by it under section 7 of National Highways Act, 1956; (i) for proper management of highways, Authority will regulate and control plying of vehicles on highways vested in it; (j) with approval of Central Government, Authority will raise funds through floating of bonds, issue of debentures, etc." By section 3 under Chapter II, National Highways Authority of India has been constituted and by further sections its constitution and composition has been set out. Chapter III of Act is entitled "property and contracts". Section 11 thereof reads as under: "11. Power of Central Government to vest or entrust any national highway in Authority.-The Central Government may, from time to time, by notification in Official Gazette, vest in, or entrust to, Authority, such national highway or any stretch thereof as may be specified in such notification." perusal of same would indicate as to how in furtherance of National Highways Act, 1956, and vesting of national highways in Union, that Central Government can issue notification from time to time in Official Gazette so as to vest in, or entrust to National Highway Authority of India, such national highway or any stretch thereof as may be specified in such notification. It is, therefore, apparent that superior or higher right of union is, then, capable of being further entrusted or vested in such authority and which is creation of Central Government itself. Therefore, at best, national highway vesting in Union may vest in such authority in terms of notification under section 11 but merely because Central Government or authority causes development and maintenance of national highway by involving private entity or private party does not mean that said private party can enjoy or claim rights of Central Government or this authority in national highway. This is apparent from plain reading of these relevant statutory provisions. It is well settled that when language of statute is plain and clear then there is no scope for interpretation. court must apply such language and which is clear. That is what is called rule of literal interpretation, Then, there is no scope for interpretation. Chapter IV of National Highways Authority of India Act (for short "the NHAI Act"), 1988, deals with functions of authority. Section 16 thereunder reads as under: "16. Functions of Authority.-(1) Subject to rules made by Central Government in this behalf, it shall be function of Authority to develop, maintain and manage national highways and any other highways vested in, or entrusted to, it by Government. (2) Without prejudice to generality of provisions contained in sub- section (1), Authority may, for discharge of its functions- (a) survey, develop, maintain and manage highways vested in, or entrusted to, it; (b) construct offices of workshops and establish and maintain hotels, motels, restaurants and restrooms at or near highways vested in, or entrusted to, it; (c) construct residential buildings and townships for its employees; (d) regulate and control plying of vehicles on highways vested in, or entrusted to, it for proper management thereof; (e) develop and provide consultancy and construction services in India and abroad and carry on research activities in relation to development, maintenance and management of highways or any facilities thereat; (f) provide such facilities and amenities for users of highways vested in, or entrusted to, it as are, in opinion of Authority, necessary for smooth flow of traffic on such highways; (g) from one or more companies under Companies Act, 1956 (1 of 1956), to further efficient discharge of functions imposed on it by this Act; (h) engage, or entrust any of its functions to, any person on such terms and conditions as may be prescribed; (i) advise Central Government on matters relating to highways; (j) assist, on such terms and conditions as may be mutually agreed upon, any State Government in formulation and implementation of schemes for highway development; (k) collect fees on behalf of Central Government for services or benefits rendered under section 7 of National Highways Act, 1956 (48 of 1956), as amended from time to time, and such other fees on behalf of State Governments on such terms and conditions as may be specified by such State Governments; and (l) take all such steps as may be necessary or convenient for, or may be incidental to, exercise of any power or discharge of any function conferred or imposed on it by this Act. (3) Nothing contained in this section shall be construed as- (a) authorising disregard by Authority of any law for time being in force; or (b) authorising any person to institute any proceeding in respect of duty or liability to which Authority or its officers or other employees would not otherwise be subject under this Act." Section 16 has been amended by inserting clause (h) in sub-section (2) thereof and which would indicate as to how any person can be engaged or entrusted with any of functions of authority and on such terms and conditions as may be prescribed. term "prescribed" is defined to mean prescribed by Rules. functions that are to be discharged by authority are enlisted from clause (a) to clause (f) and clause (i) to clause (l). However, that does not in any manner mean that this person who is engaged or entrusted with any of functions by authority can be said to be owner of National Highway. ownership being that of Union, it can never be said to be divested of that absolute right by engagement of any person or by entrusting any of functions of authority to him. It would not be proper, therefore, to read into section 32 of Incometax Act, 1961, something which is defeating and frustrating mandate of these laws. It can never be intended by Legislature that broad and wide definition of term "owner" as appearing in Income-tax Act, 1961, would interfere with or take away absolute rights of above nature conferred in Union of National Highways. This is too well settled and to require reference to any judgment. That provision in one statute or definition in one statute cannot be interpreted so as to defeat and frustrate another law or statute or any definition therein and when that another statute is special legislation. words and definitions in general enactment can never be held to be contradicting, overriding stipulations and provisions in special statute. National Highways Act and National Highways Authority of India Act are, therefore, special statutes and when concept of ownership and vesting therein is of absolute nature that cannot be said to be in any manner restricted or curtailed by general definition or understanding of term "owner" as appearing in Income-tax Act, 1961. term is defined widely and broadly in Income-tax Act, 1961, so as not to allow anybody to escape provisions thereof by urging that he has limited right or which is not akin to ownership. Therefore, his income should not be brought to tax. Similarly, if he can claim any deductions from his income which is comprising profits and gains from his business then that deduction can be availed of by him. It is for that limited purpose that term "owner" is defined in this manner Income-tax Act, 1961. However, as held above, that cannot control leave alone overreach National Highways Act, 1956, or National Highways Authority of India Act, 1988. Mr. Irani has fairly brought to our notice notification issued by Central Government entrusting stretches as specified in column (3) of Table annexed to this notification of corresponding section as mentioned against them in column (2) of Table of national highway as described in column (1) of same to National Highways Authority of India. bare reading of this notification would reveal that bridge or road which has been constructed and developed as national highway and which is from Bangalore, now Bengaluru, to Karnataka-Maharashtra border that is entrusted to National Highways Authority of India. We have invited Mr. Irani's attention to judgment of hon'ble Supreme Court in case of International Tourist Corporation v. State of Haryana reported in [1981] AIR 1981 SC 774. There, hon'ble Supreme Court was concerned with constitutional validity and vires of section 3(3) of Haryana Passengers and Goods Taxation Act. writ petitions filed by appellant before Supreme Court came to be dismissed by High Court of Punjab and Haryana. They upheld vires of section 3(3), hence, appeals to hon'ble Supreme Court. hon'ble Supreme Court referred to constitutional and statutory provisions and thereafter held as under: "The constitutional and statutory provisions which require to be considered may now be set out. Entry 23 and Entry 97 of List I of Seventh Schedule to Constitution are as follows: '23. Highways declared by or under law made by Parliament to be national highways.' '97 Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.' Entries 22, 24, 25, 29, 30 and 89 of List I also throw light, as we will presently show and they are as follows: '22. Railways.' '24. Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; rule of road on such waterways.' rule of road on such waterways.' '25. Maritime shipping and navigation, including shipping and navigation on tidal waters; provision of education and training for mercantile marine and regulation of such education and training provided by State and other agencies.' '29. Airways; aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies.' '30. Carriage of passengers and goods by railway, sea or air, or by national waterways in mechanically propelled vessels.' '89. Terminal taxes on goods or passengers, carried by railway, sea or air, taxes on railway fares and freights.' Entry 13, Entry 56 and Entry 57 of List II are as follows: '13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.' '56. Taxes on goods and passengers carried by road or on inland waterways.' '57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to provisions of entry 35 of List III.' 4. National Highways Act, 1956, provides for declaration of certain highways to be national highways. Section 2(1) of Act declares highways specified in Schedule'except such parts thereof as are situated within any municipal area' to be National Highways. Section 3 defines'municipal area' as meaning'any municipal area with population of 20,000 or more, control or management of which is entrusted to Municipal Committee, Town Area Committee, Town Committee or any other authority'. Section 4 vests all National 371 Highways in Union. Section 5 makes it responsibility of Central Government'to develop and maintain in proper repair all national highways', but empowers Central Government to direct that any function in relation to development or maintenance of any national highway shall, subject to such conditions as may be specified, also be exercisable by concerned State Government. Section 6 further empowers Central Government to give directions to Government of any State as to carrying out in State of any of provisions of Act or of any rule, notification or order made thereunder. Section 8 authorises Central Government to enter into agreement with Government of any State or with any municipal authority in relation to development or maintenance of whole or any part of national highway situated within State or within municipal area, and any such agreement it is said, may provide for sharing of expenditure by respective parties thereto. 5. We have already extracted section 3(3) of Haryana Passengers and Goods Taxation Act, 1952. It is not necessary to refer to other provisions of Act... 8. Entry 56 of List II refers to taxes and goods on passengers carried by road or on inland waterways. It does not except national highways and national waterways, so declared by law made pursuant to Entry 23 and Entry 24 of List I. While it is to be noticed that Entries 22, 23, 24, 25 and 29 specify railways, national highways, national waterways and maritime shipping, navigation and airways respectively, Entry 30 which refers to carriage of passengers and goods specifies railways, sea, air and national waterways only but not national highways. Again, Entry 89 which refers to terminal taxes on goods or passengers specifies railways, sea or air but not national highways. omission of reference to national highways in Entry 30 and entry 89 is of significance and indicates that subject of'passengers and goods' carried on national highways is reserved for inclusion in State List. consideration of these several entries appears to us to make it clear that taxes on passengers and goods carried on National Highways also fall directly and squarely within and are included in entry 56 of List II. 9. We proceed to next submission of learned counsel for appellants that legislative power to impose taxes under entry 56 of List II was of regulatory and compensatory nature and consequently taxing power of State Legislature could only be exercised with respect to goods and passengers carried on roads, maintained by State Government and not on national highways which were maintained by Union Government. In counter affidavit filed by Shri Rajender Singh, Taxation Commissioner, on behalf of State of Haryana, it was claimed that tax was not of regulatory and compensatory nature but that it was general revenue measure. This position was abandoned during course of argument and Shri Bhagat learned counsel for State of Haryana conceded that tax was of regulatory and compensatory nature. Nor, of course, is court bound by any statement made by or on behalf of Executive Government on question of legislative intent or nature of enactment, what Legislature intended enactment to be need not necessarily be what Government says it is. It is matter of construction, in light of several attendant circumstances including source of legislative power under Constitution to make particular law. We have held that Haryana Passengers and Goods Taxation Act is law made pursuant to power given to State Legislature by entry 56 of List II. Having regard to Atiabari Tea Co. Ltd. v. State of Assam [1961] 1 SCR 809; AIR 1961 SC 232, Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan [1963] 1 SCR 491: AIR 1962 SC 1406 and Bolani Ores Ltd. v. State of Orissa [1975] 2 SCR 138; AIR 1975 SC 17 it has to be held that power exercisable under Entry 56 of List II is power to impose taxes which are in nature of regulatory and compensatory measures. In last of cases mentioned it was said by court, 'Entry 57 of List II empowers legislation in respect of taxes on vehicles ... suitable for use on roads... power exercisable under Entry 57 is power to impose taxes which are in nature of compensatory and regulatory measures'. What was said about entry 57 is true of entry 56 too. But to say that nature of tax is of compensatory and regulatory nature is not to say that measure of tax should be proportionate to expenditure incurred on regulation provided and services rendered. If tax were to be proportionate to expenditure on regulation and service it would not be tax but fee. 10. There cannot be slightest doubt that State of Haryana incurs considerable expenditure for maintenance of roads and providing facilities for transport of goods and passengers within State of Haryana. maintenance of highways other than national highways is exclusively responsibility of State Government. While maintenance of national highways is responsibility of Union Government, under section 5 of National Highways Act, that very provision empowers Central Government to direct that any function in relation to development and maintenance of national highway shall also be exercisable by concerned State Government. Section 6 further empowers Central Government to give directions to State Government as to carrying out of provisions of Act and section 8 authorises Central Government to enter into agreement with State Government in relation to development and maintenance of whole or part of national highway situated within State including provision for sharing of expenditure. Therefore, State Government is not altogether devoid of responsibility in matter of development and maintenance of national highway, though primary responsibility is that of Union Government. It is under statutory obligation to obey directions given by Central Government with respect to development and maintenance of national highways and may enter into agreement to share expenditure. That part of highway which is within municipal area is excluded from definition of national highway and therefore, responsibility for development and maintenance of that part of highway is certainly on State Government and Municipal Committee concerned. Since development and maintenance of that part of highway which is within municipal area is equally important for smooth flow of passengers and goods along national highway it has to be said that in developing and maintaining highway which is within municipal area, State Government is surely facilitating flow of passengers and goods along national highway. Apart from this, other facilities provided by State Government along all highways including national highways, such as lighting, traffic control, amenities for passengers, halting places for buses and trucks are available for use by everyone including those travelling along national highways. It cannot therefore, be said that State Government confers no benefits and renders no service in connection with traffic moving along national highways and is, therefore, not entitled to levy compensatory and regulatory tax on passengers and goods carried on national highways. We are satisfied that there is sufficient nexus between tax and passengers and goods carried on national highways to justify imposition." Mr. Irani would submit that this judgment is of no assistance to us in resolving present controversy. Simply because there State Government was levying tax on passengers and goods carried on national highways and argument was that it cannot do so for want of competence in it. Hence, this judgment is not required to be referred. We are not in agreement with Mr. Irani because reference to this judgment is not in context of what was essential controversy before hon'ble Supreme Court but with regard to position of Central Government and State Government qua national highway. That position has been reiterated and it is to that extent that we have referred to this judgment. Pertinently, this judgment is neither overruled or distinguished by any further judgment rendered by hon'ble Supreme Court. above material, therefore, is enough to conclude that both Commissioner as also Tribunal were right in holding that claim of depreciation on toll roads by assessee is untenable in law. No such claim could have been made by assessee. However, Mr. Irani has led great emphasis on judgment of hon'ble Supreme Court in case of Mysore Minerals Ltd. v. CIT reported in [1999] 239 ITR 775 (SC). He relied upon this judgment to urge that where taxing provision is capable of two interpretations and both of which are possible then one which is favourable to assessee should be preferred. He also relies upon observations in that behalf in above judgment of hon'ble Supreme Court and which are to following effect (page 778 of 239 ITR): "What is ownership? terms'own','ownership','owned', are generic and relative terms. They have wide and also narrow connotation. meaning would depend on context in which terms are used Black's Law Dictionary (6th edition), defines'owner' as under: 'Owner. person in whom is vested ownership, dominion, or title of property; proprietor. He who has dominion of thing, real or personal, corporeal or incorporeal, which he has right to enjoy and do with as he pleases, even to spoil or destroy it, as far as law permits, unless he be prevented by some agreement or covenant which restrains his right. term is, however, nomen generalissimum, and its meaning is to be gathered from connection in which it is used, and from subject matter to which it is applied. primary meaning of word as applied to land is one who owns fee and who has right to dispose of property but term also includes one having possessory right to land or person occupying or cultivating it. term "owner" is used to indicate person in whom one or more interests are vested for his own benefit....' In same dictionary, term'ownership' has been defined to mean, inter alia, a'collection of rights to use and enjoy property, including right to transmit it to others.... right of one or more persons to possess and use thing to exclusion of others. right by which thing belongs to some one in particular, to exclusion of all other persons. exclusive right of possession, enjoyment and disposal; involving as essential attribute right to control, handle, and dispose'. Dias on Jurisprudence (4th edition, at page 400) states: 'The position, therefore, seems to be that idea of ownership of land is essentially one of "better right" to be in possession and to obtain it, whereas, with chattels concept is more absolute one. Actual possession implies right to retain it until contrary is proved, and to that extent possessor is presumed to be owner.' Stroud's Judicial Dictionary gives several definitions and illustrations of ownership. One such definition is that the'owner' or'proprietor' of property is person in whom (with his or her assent) it is for time being beneficially vested, and who has occupation, or control, or usufruct, of it; e.g., lessee is, during term, owner of property demised. Yet another definition that has been given by Stroud is: ' "Owner" applies'to every person in possession or receipt either of whole, or of any part, of rents or profits of any land or tenement; or in occupation of such land or tenement, other than as tenant from year to year or for any less term or as tenant at will.' In State of U. P. v. Renusagar Power Company [1991] 70 Comp Cas 127, 149 (SC) is, was held that'the word "own" is generic term, embracing within itself several gradations of title, dependent on circumstances, and it does not necessarily mean ownership in fee simple; it means,'to possess, to have or hold as property'. In CIT v. Podar Cement Pvt. Ltd. [1997] 226 ITR 625 (SC), question which came up for consideration before this court was whether rental income from house property which had come to vest in assessee, but as to which assessee was not legal owner for want of deed of title, was liable to be assessed as income from house property or as income from other sources. To be assessable as income from house property within meaning of section 22 of Act property should be such'of which assessee is owner'. This court upon juristic analysis of underlying scheme of Act and resorting to contextual and purposive interpretation, also having reviewed several conflicting decisions of different High Courts, held that liability to be assessed was fixed on person who receives or is entitled to receive income from property in his own right. Vide paragraph 55, this court has held (page 653): 'We are conscious of settled position that under common law, "owner" means person who has got valid title legally conveyed to him after complying with requirements of law such as Transfer of Property Act, Registration Act, etc. But, in context of section 22 of Income-tax Act, having regard to ground realities and further having regard to object of Income-tax Act, namely, "to tax income", we are of view, "owner" is person who is entitled to receive income from property in his own right.' In R. B. Jodha Mal Kuthiala v. CIT [1971] 82 ITR 570 (SC), it was held for purpose of section 9 of Indian Income-tax Act, 1922, that owner must be person who can exercise rights of owner, not on behalf of owner but in his own right. We may usefully extract and reproduce following classic statement of law from Perry v. Clissold [1907] AC 73 (PC) quoted with approval in Nair Service Society Ltd. v. K. C. Alexander, AIR 1968 SC 1165 (page 1174): 'It cannot be disputed that person in possession of land in assumed character of owner and exercising peaceably ordinary rights of ownership has perfectly good title against all world but rightful owner. And if rightful owner does not come forward and assert his title by process of law within period prescribed by provisions of statute of limitation applicable to case, his right is for ever extinguished and possessory owner acquires absolute title.' Podar Cement's case [1997] 226 ITR 625 (SC), is under Incometax Act and has to be taken as trend-setter in concept of ownership. Assistance from law laid down therein can be taken for finding out meaning of term'owned' as occurring in section 32(1) of Act. In our opinion, term'owned' as occurring in section 32(1) of Income- tax Act, 1961, must be assigned wider meaning. Anyone in possession of property in his own title exercising such dominion over property as would enable others being excluded therefrom and having right to use and occupy property and/or to enjoy its usufruct in his own right would be owner of buildings though formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act, etc.'Building owned by assessee' expression as occurring in section 32(1) of Income-tax Act means person who having acquired possession over building in his own right uses same for purposes of business or profession though legal title has not been conveyed to him consistently with requirements of laws such as Transfer of Property Act and Registration Act, etc., but nevertheless is entitled to hold property to exclusion of all others." Once again these observations must be seen in backdrop of facts where assessee had purchased for use of its staff seven low income group houses from Housing Board. assessee had made part payment and was in turn given allotment of houses followed by delivery of possession by Housing Board. actual deed of conveyance is not executed by Housing Board in favour of assessee. claim for depreciation under section 32 of Income-tax Act, 1961, in respect of buildings used for purpose of business of assessee was rejected by Assessing Officer and on ground that assessee had not become owner as no conveyance deed was executed in its favour. assessee's appeal was allowed by Commissioner of Income-tax but on Revenue's appeal, Income-tax Appellate Tribunal set aside judgment of Commissioner of Income-tax. Tribunal referred question of law to hon'ble High Court and it answered same against assessee and in favour of Revenue. That is how matter was carried to hon'ble Supreme Court. It is in that context that concept of ownership has been discussed and assessee's claim was upheld by hon'ble Supreme Court. We are not concerned here with ownership of building or land beneath which is not conveyed and sold or transferred by execution of conveyance or sale deed. There, in terms of agreement between parties pending execution of such conveyance or sale deed, absolute rights in property can be said to be transferred and in given case. Therefore, depending upon facts and circumstances in each case, claim of ownership can be made. However, it is not that in every case principles referred to by hon'ble Supreme Court would apply. Depending on nature of claim, context and circumstances in which it arises, these principles would have to be invoked and applied. There is no general rule which can be said to be laid down. Therefore, observations at page 781 and which have been relied upon from this judgment by Mr. Irani would not carry case of assessee further. assessee can definitely claim depreciation on investments. He has definitely invested in project of construction development and maintenance of national highway and such of assets in form of building and plant and machinery, etc. claim for depreciation can be validly raised and granted. We are here concerned with claim on land or road itself. Merely because road is laid out does not mean that assessee is owner thereof. He has laid it out for purpose of union and for its ultimate vesting in public. To similar effect are observations in CIT v. Podar Cement P. Ltd. reported in [1997] 226 ITR 625 (SC) and for above reasons that judgment is also distinguishable. In this regard one can also make useful reference to judgment of hon'ble Supreme Court in case of State of U. P. v. Ata Mohd. reported in AIR 1980 SC 1785. hon'ble Supreme Court in backdrop of nature of right that vests in municipalities regarding public streets held as under: "It may be noted that suit filed by respondent against municipality for injunction restraining Municipal Board from demolishing or interfering with constructions made by him was decreed in O. S. No. 86 of 1948 and that decree has become final. In present suit, municipality is not party. Therefore, contention that municipality had not leased site to respondent by document as required by Municipal Act, would be of no avail. Equally, plea that it acted beyond scope of its authority, is not available to Municipality. plea of State taken before High Court, and before us, by Mr. Dixit, learned counsel for appellant, is that State is owner of property in spite of fact it had vested in municipality as a'street' under section 116(g) of Act. It was submitted that when property is put to different use, it is open to Government to assert, its title and required anyone in illegal possession of property to vacate. There is not much dispute that property belonged to State before Municipal Act was passed. High Court has found that State was owner of property till Municipal Act was passed and this finding was not challenged before us. only point on which State lost suit before High Court was that after passing of Uttar Pradesh Municipal Act property vested in municipality and State ceased to be owner and, therefore, cannot maintain suit for evicting respondent. municipalities in various States were created under respective Municipalities Acts, in order to facilitate efficient administration of municipal areas and to provide lighting, watering and maintaining of public streets and places. duties of Municipal Boards are specified in section 7 of U. P. Municipalities Act. Under section 118 of Act, Municipal Board is empowered to manage or control any property entrusted to its management and control. vesting of property, in municipality is under section 116 of Act. Section 116 provides that subject to any special reservation made by State Government, all property of nature specified in this section and situated within municipality shall vest in and belong to Board, and shall, with all property which may become vested in Board, be under its direction, management and control. Clause (g) relates to vesting of streets and is as follows: 'All public streets and pavements, stones and other materials thereof, and also all trees erections, materials, implements and things existing or on appertaining to such streets.' It may be noted that while under clause (f) of section 116 all lands and other property transferred to board by Government by gift, purchase or otherwise for local public purposes vest in municipality, under clause (g), streets vest only qua streets and not as absolute property with municipality. word "street" is defined under section 2(23) as follows: 'Street means any road, bridge, footway, lane, square, court, alley or passage which public or any portion of public, has right to pass along, and includes, on either side, drains or gutters and land up to defined boundary of any abutting property notwithstanding projection over such land of any verandah or other superstructure.' It has been found that property in dispute is Patri and is land which is within defined boundary of property abutting into road. Thus, property in question falls within definition of word'street'. question as to nature of right that vest in municipality under section 116(g) of Uttar Pradesh Municipalities Act will have to be considered. This court in Municipal Board v. Mahadeoji Maharaj [1965] 2 SCR 242; [1965] AIR 1965 SC 1147 had to consider nature of right that vested in Municipality over streets, Subba Rao J. (as he then was) after considering decisions of English Courts and High Court, summed up law on this subject as follows: 'The inference that side lands are also included in public way is drawn easily as said lands are between metal road and drains admittedly maintained by Municipal Board. Such public pathway vests in municipality, but municipality does not own soil. It has exclusive right to manage and control surface of soil and so much of soil below and of space above surface as is necessary to enable it to adequately maintain street as street. It has also certain property in soil of street which would enable it as owner to bring possessory action against trespassers. Subject to rights of municipality and public to pass and repass on highway, owner of soil in general remains occupier of it and, therefore, he can maintain action for trespass against any member of public who acts in excess of his rights.' After referring to section 116(g) of Uttar Pradesh Municipalities Act, under which public street vests in municipality, learned judge referred to decision of Division Bench of Madras High Court in S. Sundaram Ayyar v. Municipal Council of Madura and Secretary of State for India in Council [1902] ILR 25 Mad 635 where scope of vesting under Madras District Municipalities Act was dealt with. learned judge extracted head note from Madras decision observing that it brought out gist of decision. head note runs as follows: 'When street is vested in Municipal Council, such vesting does not transfer to municipal authority rights of owner in site or soil over which street exists. It does not own soil from centre of earth usque ad ceelum, but it has exclusive right to manage and control surface of soil and so much of soil below and of space above, surface as is necessary to enable it to adequately maintain street as street. It has also certain property in soil of street which would enable it as owner to bring possessory action against trespassers.' view taken by Division Bench of Madras High Court was that though street vested in Municipal Council, it does not transfer to municipality rights of owner in site or soil over which street exists. question has been dealt with at some detail in Madras decision and as it has been approved by this court, it may be usefully referred to. High Court while observing that if land itself had been acquired by municipality, either by purchase or otherwise and roads and drains formed thereon, municipality would have been owner of land but if street or highway over land was dedicated to public either by State or by owners of land adjoining highway will continue vested, subject only to burden of highway, in State or respective owners of land on either side of highway ad medium filum, or in any other person who may have dedicated street to public as case may be. court after pointing out that Madras Municipal Act was modelled after English Metropolis Local Management Act, 1855, referred to English cases which dealt with vesting of street in municipality and observed: 'The conclusion to be drawn from English case law is that what is vested in urban authorities under statutes similar to District Municipalities Act, is not land over which street is formed, but street qua street and that property in street thus vested in Municipal Council is not general property or species of property known to Common Law, but special property created by statute and vested in corporate body for public purposes, that such property as it has in street continues only so long as street is highway by being excluded by notification of Government under section 23 of Act IV of 1884 or by being legally stopped up or diverted, or by operation of law of limitation (assuming that by such operation highway can be extinguished), interest of corporate body determines.' It is, therefore, clear that when street ceases to be highway by its being diverted to some other use, interest of corporate body determines. After referring to decisions of High Courts in India, it expressed its concurrence with decisions in Chairman of Naihati Municipality v. Kishori Lal Goswami [1886] ILR 13 Cal 171, Madhu Sudan Kundu v. Pramodha Nath Roy [1893] ILR 20 Cal 733 and Nihal Chand v. Azmat Ali Khan [1885] ILR 7 All 362 and 20 Cal 733 and Nihal Chand v. Azmat Ali Khan [1885] ILR 7 All 362 and concluded that nature or right that vested in Municipality as regards public streets there is no disposal by Indian Legislature of any land or hereditament vested in Government. What is vested in municipality under section 116(g) is street qua street and if municipality put street to any other user than that for which it was intended, State as its owner, is entitled to intervene and maintain action and to get any person in illegal occupation evicted. We accept contention of Mr. Dixit, learned counsel for State of U. P. that State is owner and in circumstances of case entitled to maintain action for eviction of respondent. view taken by High Court is erroneous. result is that appeal by State is allowed with costs and there will be decree in favour of plaintiff as prayed for." None of above material was placed before Division Bench of Allahabad High Court which decided Income Tax Appeal No. 316 of 2011 on November 8, 2012 (CIT v. Noida Toll Bridge Co. Ltd.). With greatest respect, conclusion of Division Bench rests only on section 32 of Income-tax Act, 1961. It followed hon'ble Supreme Court's judgment in Mysore Mineral Ltd. (supra) but with great respect, failed to refer to provisions of National Highways Act, 1956, or National Highways Authority of India Act, 1988. Apart therefrom, claim of depreciation on toll roads/bridge was allowed by Commissioner of Income-tax (Appeals) and Revenue's appeal before Division Bench met with similar fate. We are unable to agree with observations and conclusions of Division Bench in paragraph 25 of judgment in Income Tax Appeal No. 316 of 2011. Therefore, judgment of Division Bench of Allahabad High Court and that of Tribunal taking view in favour of assessee cannot be applied in case before us. For identical reasons, we are unable to subscribe to view taken in case of Maharashtra Road Development Corporation Ltd. by Income-tax Appellate Tribunal. For above reasons and which are in addition to those supplied by Commissioner and Tribunal, this appeal fails. reframed substantial question of law is answered in favour of Revenue and against assessee but by clarifying that assessee's claim for depreciation in respect of building, plant and machinery and falling within purview of sub-section (1) of section 32 of Income-tax Act, 1961, if considered and granted shall not be affected by our judgment. There would be no order as to costs. In view that we have taken, it is not necessary to refer to other judgments cited by Mr. Irani and which are on ambit and scope of section 263 of Income-tax Act, 1961. *** North Karnataka Expressway Ltd. v. Commissioner of Income-tax