Assessee, was  engaged in business of developing, maintaining and operating of Bus-Q-Shelters (BQS), metro stations, highways etc. It entered into a concessionaire agreement with Delhi Transport Corporation (DTC) for setting up 400 bus shelters on Build, Operate and Transfer basis (BOT basis) Assessee was to construct, operate and maintain shelters for ten years, after which shelters were to be handed over to DTC Assessee had also furnished bank guarantee of Rs. 2 crores to DTC as performance security. On account of assessee’s failure to perform its part of concessionaire agreement, DTC encashed bank guarantee and also charged interest on late payment. AO held that the said amount as capital in nature .Tribunal allowed the claim as revenue expenditure. On appeal by the revenue dismissing the appeal the Court held that since property constructed was not owned by assessee but by third party i.e. DTC, expenditure incurred in question by assessee was not capital expenditure but revenue expenditure, even otherwise, since payment made by assessee was on account of failure to perform its part of agreement including operation and maintenance of bus shelters, same was necessarily revenue in character. (AY. 2009-10)