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Income Tax Appellate Tribunal, “G” Bench, Mumbai
Before: Shri G. Manjunatha & Shri Ravish Sood
Appellant by: Shri V Chandrashekar & Shri Harshad Shah, A.Rs Respondent by: Shri V. Vinod Kumar, D.R Date of Hearing: 25.02.2020 Date of Pronouncement: 27.02.2020 O R D E R
PER RAVISH SOOD, JM
The present appeals filed by the assessee are directed against the respective orders passed by the CIT(A)-24, Mumbai, dated 15.11.2019 and 26.08.2019 for A.Y. 2015-16 and A.Y. 2016-17, which in turn arises from the respective orders passed by the A.O under Sec. 143(3) of the Income Tax Act, 1961 (for short „Act‟) for the aforementioned respective years. As a common issue is involved in the captioned appeals, therefore, the same are being taken up and disposed off by way of a consolidated order. We shall first advert to the appeal of the assessee for A.Y. 2015-16. The assessee has assailed the impugned order on the following grounds of appeal before us:
“1.0. The Hon'ble Commissioner of Income Tax (Appeals)-24 [Hon CIT-(A)] erred in not considering the Grounds of Appeal of the Appellant, on the law & merit of the case before deciding the matter, as the Hon CIT(A) being an Appellant Authority, should have followed the Jurisdictional Bombay High Court decision in Income tax matter to allow the claim of the Appellant and not the non-Jurisdictional Karnataka High Court decision which is for Commercial tax matter and not Income tax, both of which were duly noted in the Assessment Order, Statement of Facts and Grounds of Appeal.
A.Ys. 2015-16 & 2016-17 Writer Safegaurd Private Limited Vs. Deputy commissioner of Income Tax. 15(3)(1) 2
2.0. The Hon CIT-(A) erred in upholding the Order of Learned Assessing Officer for claiming depreciation on ATM Machines @15% and treating the same as Plants & Machinery without considering the fact that the ATM machines are in nature of Computer and depreciation is claimed @ 60%. 3.0. The Hon CIT-(A) erred in relying on the decision of Karnataka High Court in case of Diebold Computer Systems Pvt. Ltd v/s Commissioner of Commercial Taxes (144 STC 59 Kar) for restricting the deprecation on ATM machine @15% without considering the decision of Jurisdictional Bombay High Court decision in case of Sarswat Infotech Ltd (ITA No. 1243 of 2012) wherein the deprecation on ATM machines was allowed @60% treating the same as Computer and the Appellant had relied on the same during the course of scrutiny assessment, which was duly quoted in the Assessment Order, Statement of Facts and Grounds of Appeal
. 4.0. The Appellant craves leave to add, alter, delete or substitute any of the grounds urged above.”
2. Briefly stated, the assessee company which is engaged in the business of ATM and allied operations including vaulting and distribution, cash processing, cash-in-transit, ground transaction, housekeeping and guarding services had e-filed its return of income for A.Y. 2015- 16 on 30.11.2015, declaring its total income at Rs.3,15,74,250/- and „book profit‟ under Sec. 115JB at Rs.5,41,00,398/-. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2) of the Act. In the course of the assessment proceedings the assessee had e-filed a revised return of income on 30.03.2017, declaring its total income at Rs.1,56,34,344/- and „book profit‟ under Sec. 115JB at Rs.5,41,00,398/-.
3. During the course of the assessment proceedings, it was observed by the A.O that the assessee had claimed depreciation @ 60% on Automatic Teller Machines (ATM), by including the same in the „block of assets‟ of computer. On a perusal of the fixed asset schedule, it was observed by the A.O that the additions made to the „block of assets‟ of computers included ATM purchases amounting to Rs.7,08,44,030/- (less than 180 days). As such, it was noticed by the A.O that the assessee had claimed depreciation on ATM @ 60%. Observing, that ATM machine was a part of the plant and machinery or office equipment, the A.O held a conviction that the same was entitled for depreciation @ 15% as per Rule 5 and Appendix-1. On the basis of his aforesaid conviction the A.O called upon the assessee to substantiate his claim for depreciation of 60% on ATM. In reply, the assessee relied upon the judgment of the Hon‟ble High Court of Bombay in the case of the Commissioner of Income Tax-10 Vs. M/s Sarawat Infotech Ltd. [ITA (L) No. 1243 of 2012], dated 15.01.2013, wherein the Hon‟ble High Court had concurred with the view taken by the Tribunal that ATM formed part of the „block of assets‟ of computers and was eligible for depreciation @ 60%. However, the A.O was not persuaded to A.Ys. 2015-16 & 2016-17 Writer Safegaurd Private Limited Vs. Deputy commissioner of Income Tax. 15(3)(1) 3 subscribe to the aforesaid claim of the assessee. Observing, that as per the Income Tax Act, depreciation @ 60% was allowed on computers and not on computer aided equipments such as ATM, the A.O declined to accept the aforesaid claim of the assessee. Accordingly, treating the ATM as part of the plant and machinery the A.O restricted the assesses claim for depreciation to 15%. Resultantly, the A.O disallowed the claim of excess depreciation of Rs.1,59,39,907/-.
4. Aggrieved, the assessee carried the matter in appeal before the CIT(A). Observing, that the ATM is nothing but an electronic device that functions with the help of computers, the CIT(A) was of the view that the A.O had rightly concluded that an ATM was an electronic device and not a computer. Accordingly, the CIT(A) not finding favour with the contentions advanced by the assessee dismissed the appeal.
5. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. It was submitted by the ld. Authorized Representative (for short „A.R‟) for the assessee, that the issue involved in the present appeal that as to whether or not an ATM is a computer is squarely covered by the judgment of the Hon‟ble High Court of Bombay in the case of Commissioner of Income Tax-10 Vs. M/s Saraswat Infotech ltd. [ITA (L)No. 1243 of 2012, dated 15.01.2013]. Copy of the aforesaid judgment of the Hon‟ble High Court was placed on record by the ld. A.R. It was submitted by the ld. A.R that Hon‟ble High Court in its aforesaid order had concurred with the view taken by the Tribunal that as an ATM is a computer equipment, therefore, it was entitled for depreciation @ 60%. On the basis of the aforesaid facts, it was submitted by the ld. A.R that though the claim of the assessee for depreciation on ATM @ 60% was in order, the same was however wrongly dislodged by the lower authorities.
Per contra, the ld. Departmental Representative (for short „D.R‟) relied on the orders of the lower authorities.
We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. As observed by us hereinabove, the sole issue involved in the present appeal is as to whether or not an ATM would fall under the category of computers and would be eligible for depreciation @ 60%. We have deliberated at length on the A.Ys. 2015-16 & 2016-17 Writer Safegaurd Private Limited Vs. Deputy commissioner of Income Tax. 15(3)(1) 4 issue under consideration and find that the same is squarely covered by the judgement of the Hon’ble High Court of Bombay in the case of Commissioner of Income Tax-10, Vs. M/s Saraswat Infotech Ltd. [ITA (L) No. 1243 of 2012, dated 15.01.2013]. On a perusal of the aforesaid order, we find that the question of law which was inter alia formulated before the Hon‟ble High Court , read as under:
“(b) Whether on the facts and circumstances of the case the ITAT was right in holding that depreciation on ATM is allowable @ 60% ignoring the fact that ATM is a cash dispensing machine with a projector and therefore is in nature of plant an machinery and therefore depreciation should be provided @ 15%.” Observing, that the Tribunal had rightly concluded that ATM cannot function without the help of a computer, and would thus be a part of the computer used in the banking industry, the Hon‟ble High Court had concurred with the view taken by the Tribunal that ATM being a computer equipment was eligible for depreciation @ 60%. The relevant observations of the Hon‟ble High Court are reproduced as under:
(5) In second appeal, the Tribunal by its order dated 14.03.2012 held that UPS is an integral part of the computer system and regulate the flow of the power to avoid any kind of damage to the computer network due to fluctuation in power supply which could lead to loss of valuable data. The Tribunal relied upon the decision of the High Court dated 20/01/2011in the matter of CIT Vs. Orient Ceramics and Industries Ltd. in which UPS was held to be the part of the computer system and depreciation at 60% was allowed. Similarly, so far as ATMs are Concerned the Tribunal on finding of fact concluded that ATM cannot function without the help of computer and would be a part of the computer used in the banking industry. Reliance was placed by the Tribunal upon the decision of the Delhi Bench of Tribunal in the matter of DCIT v. Global Trust Bank (ITA No.474/D/09) wherein it has been held that ATM was a computer equipment and depreciation © 60% was allowed. So far as the use of software is concerned, the Tribunal records a fact that the evidence of the use of the software on 31.03.2008 was produced before the Tribunal. Thus, the Tribunal held that depreciation @ 30% on software was rightly claimed. (6) We note that the Tribunal has arrived at a finding of fact on all the three questions. The revenue has not been able to show that the above finding of fact is perverse. Thus, we do not see any reason to entertain question (i), (ii) and (iii) above.” On the basis of our aforesaid observations, we respectfully follow the view taken by the Hon‟ble High Court and therein conclude that the assesse‟s claim for depreciation on ATM @ 60% by including the same in the „block of assets‟ of computer was in order. Accordingly, we „set aside‟ the order of the CIT(A) and direct the A.O to vacate the disallowance of depreciation of Rs.1,59,39,907/-.
Resultantly, the appeal of the assessee is allowed. A.Ys. 2015-16 & 2016-17 Writer Safegaurd Private Limited Vs. Deputy commissioner of Income Tax. 15(3)(1) 5
We shall now advert to the appeal of the assessee for A.Y. 2016-17. The assessee has assailed the impugned order on the following grounds of appeal before us: “1.0 The Hon'ble Commissioner of Income Tax (Appeals)-24 [Hon CIT-(A)] erred in passing order without providing of reasonable opportunity of hearing and not following the principle of natural justice, hence, the order passed is invalid and void ab-initio. 2.0. The Hon CIT(A) had erred in passing ex-parte order by stating that number of notices were send, but the person looking after the tax matters of the Appellant had left the job and hence, the same was not attended. 3.0. Without prejudice to above, the Hon CIT(A) erred in not considering the Grounds of Appeal of the Appellant, on the law & merit of the case before deciding the matter, as the Hon CIT(A) being an Appellant Authority, should have followed the Jurisdictional Bombay High Court decision in Income tax matter to allow the claim of the Appellant and not the non-Jurisdictional Karnataka High Court decision which is for Commercial tax matter and not Income tax, both of which were duly noted in the Assessment Order, Statement of Facts and Grounds of Appeal. 4.0. Without prejudice to the above, the Hon CIT-(A) erred in upholding the Order of Learned Assessing Officer for claiming depreciation on ATM Machines @15% and treating the same as Plants & Machinery without considering the fact that the ATM machines are in nature of Computer and depreciation is claimed @60%. 5.0. The Hon CIT-(A) erred in relying on the decision of Karnataka High Court in case of Diebold Computer Systems Pvt. Ltd v/s Commissioner of Commercial Taxes (144 STC 59 Kar) for restricting the deprecation on ATM machine @15% without considering the decision of Jurisdictional Bombay High Court decision in case of Sarswat Infotech Ltd (ITA No. 1243 of 2012) wherein the deprecation on ATM machines was allowed @60% treating the same as Computer and the Appellant had relied on the same during the course of scrutiny assessment, which was duly quoted in the Assessment Order, Statement of Facts and Grounds of Appeal. 6.0. The Appellant craves leave to add, alter, delete or substitute any of the grounds urged above.”
10. Briefly stated, the assessee company had e-filed its return of income for A.Y. 2016-17 on 17.10.2016, declaring its total income at Rs.1,06,64,750/-. Subsequently, the return of income was revised on 8.10.2017 at a loss of Rs.8,57,53,903/-. The return of income filed by the assessee was processed as such under Sec.143(1) of the Act. Thereafter, the case of the assessee was selected for scrutiny assessment under Sec.143(2) of the Act.
During the course of the assessment proceedings, it was observed by the A.O that the assessee had claimed depreciation on ATM machine @ 60%. On a perusal of the fixed assets schedule it was noticed by the A.O that the addition to the „block of assets‟ of computers A.Ys. 2015-16 & 2016-17 Writer Safegaurd Private Limited Vs. Deputy commissioner of Income Tax. 15(3)(1) 6 included ATM purchases amounting to Rs.2,92,83,629/- (less than 180 days) and Rs.16,19,06,942/- (more than 180 days). Observing, that ATM machine was a part of the plant and machinery or office equipment, the A.O held a conviction that the same was entitled for depreciation @ 15% and not @ 60%. On the basis of his aforesaid conviction the A.O called upon the assessee to substantiate his claim for depreciation of 60% on ATM. In reply, the assessee relied upon the judgement of the Hon‟ble High Court of Bombay in the case of Commissioner of Income Tax-10 Vs. M/s Saraswat Infotech Ltd. [ITA (L) No. 1243 of 2012], dated 15.01.2013, wherein the Hon‟ble High Court had concurred with the view taken by the Tribunal that ATM formed part of „block of assets‟ for computers and was eligible for depreciation @ 60%. However, the A.O was not persuaded to subscribe to the aforesaid claim of the assessee. Observing, that ATM formed part of the „block of assets‟ of „plant and machinery‟ the A.O restricted the assesses entitlement for depreciation to 15%. Resultantly, the A.O disallowed the claim of excess depreciation of Rs.7,94,46,940/-.
Aggrieved, the assessee assailed the assessment framed by the A.O before the CIT(A), However, the CIT(A) not finding favour with the contentions advanced by the assessee, dismiss the appeal.
The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We find that the facts and the issue involved in the present appeal filed by the assessee for the year under consideration viz. A.Y. 2016-17 remains the same as were there before us in its appeal for the immediately preceding year i.e A.Y. 2015-16 in ITA No. 413/Mum/2020. Accordingly, our order therein passed while disposing off the appeal of the assessee for A.Y. 2015-16 in shall apply mutatis mutandis for the purpose of disposal off the present appeal. We thus in terms of our observations recorded while disposing off the appeal of the assessee for A.Y. 2015-16 in ITA No. 413/Mum/2020 vacate the disallowance of the claim of depreciation of Rs.7,94,46,940/- made by the A.O by treating ATM as plant and machinery, and not a computer.
Resultantly, the appeal filed by the assessee is allowed in terms of our aforesaid observations. A.Ys. 2015-16 & 2016-17 Writer Safegaurd Private Limited Vs. Deputy commissioner of Income Tax. 15(3)(1) 7
The appeals of the assessee for A.Y. 2015-16 i.e and for A.Y. 2016-17 in are allowed.