Assessee  entered into an agreement with Delhi transport corporation for setting up 400 bus queue shelters under build operate and transfer basis .  Assessee was to construct above shelters and operate them for 10 years and thereafter they were to be transferred to Delhi transport Corporation. Assessee was required to pay Delhi transport Corporation monthly revenue of Rs. 4.09 crores in respect of fees for 400 bus shelters and it was free to earn revenue through advertisement etc. to be displayed on those bus shelters. In terms of assessment, assessee was to give a performance security to Delhi transport Corporation . Since assessee failed to construct bus shelters within time prescribed in agreement, DTC encashed amount of performance security. Assessee debited said amount in profit and loss account and claimed deduction for same. Assessing Officer rejected assessee’s claim taking a view that loss was of capital nature. On appeal Tribunal held that ,the  assessee was engaged in business of constructing bus shelters and loss of bank/performance guarantee occurred during course of business of assessee, it could not be regarded as capital expenditure when assessee failed to create requisite bus shelters within prescribed time period. therefore, impugned order was to be set aside and assessee’s claim for deduction was to be allowed.( AY.2009-10)