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2021 (7) TMI 66 - HC - Income TaxReopening of assessment u/s 147 - HELD THAT:- The assessee filed the return for the Assessment Year 2008-09 on 28.09.2008 and the assessment was completed on 07.12.2010. A notice was issued to the assessee on 21.03.2013 under Section 148 of the Act and thereafter, reasons for re-opening the assessment were supplied to the assessee on 07.05.2013. Therefore, the re-opening of assessment is in accordance with law and the same has been rightly held to be so by the Assessing Officer, Commissioner of Income Tax (Appeals) and the tribunal. Therefore, substantial question of law No.1 is answered against the assessee and in favour of the revenue. Depreciation on ATM - whether tribunal was correct in holding that an ATM which performs the functions of a computer such as input, process and output, could not be considered as a 'Computer' or 'Computer System' or Computer Terminal' or 'Computer Peripheral Device' for the purpose of claiming depreciation under the Act at 60%? - HELD THAT:- Issue to be answered in favour of the assessee by a division bench of this court in 'CIT VS. NCR CORPORATION (P) LTD.' [2020 (6) TMI 439 - KARNATAKA HIGH COURT] and therefore, for the reasons assigned in the aforesaid judgment, the ATMs are held entitled for depreciation at the rate of 60% as computers. Depreciation u/s 32 on all the assets @ 100% of the assets acquired during the year - procurement of capital assets during the year, ought to have considered furnishing of 73% of the invoices in relation to capital assets acquired during the year as furnishing of substantial evidence relating to capital assets - HELD THAT:- The burden undoubtedly is on the assessee who has claimed depreciation by producing the evidence on record viz., the invoices. In the instant case, the assessee had produced 66% of the invoices and therefore, the depreciation to the extent of 66% has been allowed by the Assessing Officer, Commissioner of Income Tax (Appeals) as well as by the tribunal. The assessee has not admittedly produced the invoices in respect of 34% of the claim of depreciation. It is not the case of the assessee that he is not in possession of the invoices. It is pertinent to note that in JAY ENGINEERING WORKS [1978 (2) TMI 94 - DELHI HIGH COURT] the books of accounts of the assessee were burnt in fire and therefore, the statutory audit report was accepted as secondary evidence. The law does not provide for statutory presumption in favour of the statutory audit report. The finding of fact on the aforesaid issue has been recorded by all the authorities viz., the Assessing Officer, Commissioner of Income Tax (Appeals) and the tribunal, which is in conformity with Section 37 of the Act. The aforesaid finding cannot be termed as perverse. For the aforementioned reasons, the substantial question of law No.4 is answered against the assessee and in favour of the revenue.
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