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2015 (11) TMI 861 - ITAT DELHI

2015 (11) TMI 861 - ITAT DELHI - TMI - Entitlement to the deduction of bad debt pertaining to non-rural branches - Held that:- We set aside this ground of appeal to the file of AO for fresh examination and to grant deduction on merits to the assessee in light of decision of Hon’ble Supreme Court in case of Catholic Syrian Bank Ltd. v. CIT [2012 (2) TMI 262 - SUPREME COURT OF INDIA] wherein held that U/s 36(1)(vii), the assessee would be entitled to general deduction upon an account having become .....

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(v) of the Act. Thus, the proviso would not permit benefit of double deduction, operating with reference to rural loans. Therefore, we hold that provisions of Sections 36(1)(vii) and 36(1)(viia) are distinct and independent items of deduction and operate in their respective fields

Disallowance of the claim of loss on account of fall in value of investments held as stockin- trade - Held that:- This issue now no longer survives in view of two decisions of Hon’ble Karnataka High Court i .....

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unts in terms of the RBI Regulations and he has shown it as investment. But consistently for more than two decades it has been shown as stock-in-trade and depreciation is claimed and allowed. Therefore, notwithstanding that in the balance-sheet , it is shown as investment, for the purpose of Income Tax Act, it is shown as stock-in-trade. Therefore, the value of the stocks being closely connected with the stock market, at the end of the financial year, while valuing the assets, necessarily the ba .....

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on/ circular of Reserve Bank of India. - Decided in favour of assessee.

Disallowance sustained by CIT(A) u/s 14A - assessee has earned exempt income which is exempt under the provisions of Section 10 - Held that:- no disallowances cannot be made in case of a bank where assessee’s own funds and other non-interest bearing funds are more than investment in the tax free securities. However, it cannot be said without detailed examination that the assessee, which can be disallowed, has incu .....

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to exempt income. - Decided in favour of assessee for statistical purposes.

Restriction on disallowance u/s 14A by CIT(A) - Held that:- We confirm the order of CIT (A) in deleting interest port ion of expenditure u/s 14A in view of the excess of owned interest free funds than the investment in tax free income earning securities for the year. See Commissioner of Income Tax-2, Mumbai Versus HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] - Decided in favour of assessee .

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arious high courts, which have been considered by CIT (A) in his orders while deciding the issue. Further, the revenue has also not contested this issue in earlier years. Hon Bombay high court in case of CIT V HDFC bank Limited in [2014 (8) TMI 119 - BOMBAY HIGH COURT] has held that even after the decision of Hon. supreme court in case of CIT v Vijaya bank (1990 (9) TMI 5 - SUPREME Court) broken period interest is allowable to the assessee. - Decided in favour of assessee .

Claim of d .....

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ess claim of depreciation on fixture and fitting - CIT(A) allowed claim - Held that:- Assessee banks has shown addition of ₹ 15,73,78,019/- to the opening WDV of ₹ 15622208/- and reduction therefrom of ₹ 100163 resulting in to WDV of ₹ 99748028 and claimed depreciation thereon of ₹ 75136583/ -. Firstly, assessee has shown these items as furniture and fixtures and we do not find that Appendix I as per Income tax rules 1962 prescribed under the head furniture and fixt .....

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over 5 years. Therefore, in absence of these facts, this ground of appeal is restored back to the file of AO for fresh verification. - Decided in favour of revenue for statistical purposes. - ITA No. 1937/Del/2011, ITA No. 1961/Del/2011 - Dated:- 4-11-2015 - SH. I.C.SUDHIR, JM AND SH. PRASHANT MAHARISHI, AM For The Assessee : Sh. K.V.S.R.Krishna, CA For The Revenue : Sh. R.R.Singh, CIT., DR ORDER Per Prashant Maharishi, AM: 01. Both these cross appeals has arisen out of the order of CIT(A)-XVI, .....

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rcular allowing the bank once in a year shifting of securities duly approved by the Board of the Bank. Resultant loss, i f any, has to be provided by the bank as per the said RBI circular. Therefore, it is an actual loss and not a notional loss. The claim of ₹ 205.43 crores should be allowed. 3. The appellant contends that the principle of valuation of investments held as stock in trade on the basis of cost or market value whichever is lower, has been accepted in the earlier years and the .....

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e Income Tax Act , 1961. 5. The appellant contends that no expenditure is incurred for earning tax free income because a) expenditure incurred is for banking business of the assessee, b) assessee has sufficient non-interest bearing own funds to invest c) the investments made by the bank are to meet RBI norms like CRR, SLR ratios etc. d) the investments in the bank are made to realize gains or losses and earning dividend is only incidental e) neither the Assessing Officer nor the CIT(A) has any m .....

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03. During the course of hearing assessee has also raised an additional grounds of appeal as under :- 1. The Appellant is making this legal claim pursuant to the judgment of the Hon ble Supreme Court arising out of the interpretation of sect ion 36(1) (viia) and Sect ion 36(1) (vii) of the Income Tax Act , 1961 in the case of Catholic Syrian Bank Ltd. V. CIT reported in [2012] 248 CTR 1 (SC) wherein it has been held that the provisions of bad and doubtful debts u/s 36(1) (viia) applies only to .....

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of NTPC v. CIT(1998)229 ITR 383(S.C. ), Jute Corporation of India Ltd. v. CIT(1991) 187 ITR688 (SC). The powers of the appellate authority being co-terminus with that of the Assessing Officer, the claim of the Appellant may kindly be admitted and adjudicated. 04. Regarding the prayer of the assessee for admission of additional ground, Ld. AR of the assessee submitted that above additional ground a) is purely legal in nature b) the facts of the ground are on record He further submitted that powe .....

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ter dated 18.9.2009 a query has been raised for the deduction u/s 36(1)(vii) and 36(1) (viia) vide point no. 1, 2 and 3 of that notice. Ld. AR further stated that vide letter dated 13.10.2009 assessee has submitted the details of deduction u/s 36(1) (viia) and 36(1) (vii) . In the letter it was submit ted that the claim of bad debt u/s 36(1) (vi i ) has been made by the assessee after considering the provisions for bad and doubtful debts u/s 36(1) (viia). Ld. AR of the assessee submitted that id .....

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e set aside to the file of AO. Ld. DR has submit ted that in order for AY 2006-07 matter has been restored back to the file of AO for verification and granting deduction thereafter , so he agreed that matter for this year may also be sent back to the file of AO for verification. 06. As relevant facts are already on record, ground is purely legal in nature, and issues has already been admitted in case of assessee for earlier year , we admit the additional ground of appeal and decide the same firs .....

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ural branches are also required to be restricted to the extent of such debt or part thereof exceeds the credit balance in the account of provision of bad and doubtful debts made u/s 36(1) (viia). Hon ble Supreme Court in case of Catholic Syrian Bank Ltd. V. CIT 343 ITR 270 has held that the provisions of sect ions 36(1) (vii) and 36(1) (vi ia ) are distinct and independent items of deduction and operate in their respective fields. Accordingly, bad debts writ ten of f in accounts, other than thos .....

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bad debt and being written off as irrecoverable in the accounts of the assessee for the previous year without any restriction. This, obviously, would be subject to satisfaction of the requirements contemplated under sect ion 36(2). Therefore, assessee is entitled to the deduction of bad debt pertaining to non-rural branches without any restrict ion of provisioning. Identical issue has arisen in the case of assessee for AY 2006-07 in ITA no. 22/Del /2011 dated 15 March, 2013 wherein ITAT has adm .....

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s been written of f comprising bad debts in respect of rural branches of ₹ 32,53,000/ - and balance amount of 2,74,32,77,945/- relates to claim of deduction on account of bad debt u/s 36(1) (vi i ) with respect to non- rural branches. The facts and workings relating to the same are at page no. 11 and 12 of the paper book wherein a query letter dated 18.9.2009 a query has been raised for the deduction u/s 36(1) (vii) and 36(1) (viia) vide point no. 1, 2 and 3 of that not ice and assessee re .....

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. We have considered the submissions of both the parties and have perused the record of the case. In view of the decision of Hon ble Supreme Court in the case of Catholic Syrian Bank (supra), bad debts in respect of non-rural branches are to be allowed u/s 36(i) (vi i). The assessee s claim is that bad debts of ₹ 191,17,16,392/ - pertaining to non-rural branches have been set off against the provisions of ₹ 246,74,70,998/- u/s 36(i) (viia). In support of this contention, ld. counsel .....

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me Court in the case of Catholic Syrian Bank (supra) . If on verification, the AO finds that no separate bad debts had been writ ten of f in respect of non rural branches, then the same is to be allowed after due verification. 09. We have satisfied ourselves that facts and circumstances in this appeal compared to AY 2006-07 for which ITAT has decided the issue are identical . Therefore respectfully following the order of Co-ordinate bench, we set aside this ground of appeal to the file of AO for .....

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nt to the direction of RBI the bank has transfer red SLR securities aggregating to 1664.32 crores from Available for sale category to Held to Maturity category during the year . Due to this, mark to market devaluation of ₹ 205.43 crores has been debited to the P & L Account . Further deduction of ₹ 205.10 crores was also claimed being fall in value of investments as on 31 March 2007, which is allowed as deduction. During the course of assessment proceedings, AO disallowed the ded .....

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year. The Board of the Directors of the Bank authorizes such transfer and such loss is charged to profit and loss account of the bank. He submitted that loss arising therefrom is not a notionalloss but realloss arising on account of principles of valuation of stocks on the basis of cost or market value whichever less, AO and CIT (A) both have erred in terming it as notionalloss. He further submitted that in case of the assessee in earlier years such loss has been allowed without dispute in asses .....

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uring the year , assessee has debited the loss of ₹ 205.43 crores arising of on account of transfer of securities of ₹ 1664.32 crores from available for sale category to held to maturity category in terms of resolution of the Board of Directors of the appellant. Claim has arisen because of the circular issued by Reserve Bank of India on prudential norms for classification, valuation and operation of investment port folio bank dated 1st July, 2006. According to that circular the banks .....

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king company claims the loss, based on circulars and instruct ions of Reserve Bank of India, is allowable because of transfer of security from category of available for sale to held to maturity . This issue now no longer survives in view of two decisions of Hon ble Karnataka High Court in case of Karnataka Bank Ltd. vs. Assistant Commissioner of Income Tax 356 ITR 549 and CIT vs. Bank of Baroda 262 ITR 334 and a decision of honourable Bombay High Court in case of CIT vs. HDFC Bank Ltd. reported .....

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are bound by the same. We therefore respectfully follow the ratio laid down in the said judgment. 10. We find that even the judgment of the Karnataka High Court in the case of Karnataka Bank Ltd. (supra), reliance on which was placed by Mr Mistry, squarely covers the issue raised in this Appeal. The facts in the case before the Karnataka High Court were that the Assessee was holding securities in different categories as mandated by the RBI Master Circular dated 1st September 2003. The Assessee .....

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ee preferred an Appeal to the Tribunal. The Tribunal inter alia held that since the securities on which the depreciation had been claimed on the earlier years had not been identified, the issue was restored to the file of the Assessing Officer for consideration afresh and partly allowed the Appeal. Being aggrieved by the said order, Karnataka Bank Ltd. preferred an Appeal to the Karnataka High Court under section 260A of the Act. After discussing various judgments of the Supreme Court, the Karna .....

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prescribed under the aforesaid legislation. Therefore, the account had to be in conformity with the said requirements. The RBI Act or the Companies Act do not deal with the permissible deductions or exclusion under the Income Tax Act. For the purpose of the Income Tax Act, if the Assessee has consistently been treating the value of investment for more than two decades the investments as stock-in-trade and claimed depreciation, it is not open to the authorities to disallow the said depreciation o .....

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method is adopted by the assessee, a true picture of the profits and gains, i.e. real income is to be disclosed. For determining the real income, the entries in the balance-sheet is required to be maintained in the statutory form may not be decisive or conclusive. It is open to the Income Tax Officer as well as the assessee to point out true and proper income while submitting the income tax returns. Even if the assessee under some misrepresentation or mistake fails to make an entry in the books .....

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has been shown as stock-in-trade and depreciation is claimed and allowed. Therefore, notwithstanding that in the balance-sheet , it is shown as investment, for the purpose of Income Tax Act, it is shown as stock-in-trade. Therefore, the value of the stocks being closely connected with the stock market, at the end of the financial year, while valuing the assets, necessarily the bank has to take into consideration the market value of the shares. If the market value is less than the cost price, in .....

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ted by the learned counsel appearing for the Appellant. The Appeal is therefore dismissed. 14. Therefore, we f ind that the issue raised in this appeal squarely covered by the decision of Hon ble Karnataka High Court as well as Mumbai High Court in favour of asssessee. Therefore, respectfully following those judicial precedents, we reverse the order of CIT (A) and delete the disallowance of ₹ 205.43 crores on account of claim of loss of transfer of security from available for sale category .....

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f sect ion 14A of the Act . Therefore, assessing officer rejecting the content ion of the assessee applied provisions of Rule 8D of the Income Tax Rules 1962 for A.Y. 2007-08 and disallowed expenditure of ₹ 39,23,61,000/- . Appellant assessee preferred appeal before CIT(A) against the same who in turn held that no apportionment of expenditure towards interest can be made for disallowance u/s 14A of the Act in view of the own funds of the appellant are substantially large than amounts inves .....

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expenditure of 5% of exempt income. He submitted that the assessee has not incur red any expenditure to earn that income. He further relied upon the decision of Hon ble Mumbai High Court in case of CIT vs. HDFC Bank Ltd. Income Tax Appeal No. 330 of 2012 that no disallowance can be made in case of banking company on account of interest while applying Sect ion 14A. Regarding disallowance of ½ % of the exempt income, Ld. Counsel further submit ted that for AY 2006-07 the Hon ble ITAT in ass .....

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disputedly for AY 2007-08, Rule 8 D of Income Tax Rules 1962 does not apply. Therefore, any disallowance, if at all to be made, has to be without the support of rule 8D and based on reasonable basis. Regarding interest disallowance in view of decision of Hon ble Bombay High Court in case of CIT vs. HDFC Bank Ltd. Income Tax Appeal no. 330 of 2012 dated 23r d July 2014, it is undisputed now that no disallowances cannot be made in case of a bank where assessee s own funds and other non-interest be .....

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Hon ble ITAT for AY 2006-07 has set aside this issue to the file of AO vide para no 22-23 with direct ion to determine the amount of expenditure incurred in a relation to tax free income earned by the assessee in view decision of Honourable Delhi high court on case of Maxopp Investments V CIT 247 CTR 162. Therefore respectfully following the order of coordinate bench we restore these ground back to the file of AO to examine the issue afresh with respect to work out disallowance, if any, of other .....

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and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the disallowance of ₹ 98,12,00,000/ - being broken period interest . 3. That on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the disallowance of ₹ 5,77,71,439/ - made by the AO on account of excess claim of depreciation of LAN and WAN equipments. 4. That on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the disallowance of & .....

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aw relating to approval of COD. Therefore, earlier COD decision to grounds at Sl . No. 2,3 and 5 above for not filing appeals on these points no longer exists. 21. The ground no. 1 is regarding restricting the disallowance u/s 14A of the IT Act to ₹ 1,19,80,033/- from ₹ 39,23,61,000/ - by CIT (A). Brief facts are already discussed in deciding ground no. 4 to 6 of the assessee s appeal however, to state the facts succinctly that assessee has earned tax free income during the year as u .....

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37,32,80,967/ - and estimated disallowance at 5% of total exempt income. The CIT(A) deleted the addition mainly because of the reason that assessee is having interest free funds of share capital of ₹ 250.53 crores in reserve and surplus of ₹ 5349 crores aggregating to ₹ 5600 crores which is more than of investment made in case of securities earning tax free income. Therefore, Revenue is in appeal before us on this ground. 22. Before us, the LD DR relied up on the orders of AO. .....

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ng securities. It is the content ion of the assessee is that assessee has own on interest bearing funds available with it amounting to ₹ 5600.30 crore which is much more than the amount of investments. On the identical facts honourable Bombay high court in case of CIT Vs HDFC bank limited has held as under : - 4. We do not agree. In the case at hand, as recorded by the ITAT, undisputedly the Assessee s own funds and other non-interest bearing funds were more than the investment in the tax .....

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g in favour of the Assessee. In this regard, the submission of Mr Mistry, the learned Senior Counsel appearing on behalf of the Assessee, that this issue is squarely covered by a judgment of this Court in the case of Commissioner of Income Tax v/s Reliance Utilities and Power Ltd., reported in (2009) 313 ITR 340 (Bom) is well founded. The facts of that case were that the Assessee viz. M/s Reliance Utilities and Power Ltd. Had invested certain amounts in Reliance Gas Ltd. and Reliance Strategic I .....

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of debentures and the said amount was utilised as capital expenditure and inter-corporate deposit. It was the Assessee's submission that no part of the interest bearing funds (viz. Issue of debentures) had gone into making investments in the said two companies. It was pointed out that the income from the operations of the Assessee was ₹ 313.53 crores and with the availability of other interest free funds with the Assessee the amount available for investments out of its own funds were .....

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an Appeal before the ITAT who upheld the order of the CIT (Appeals) and Honourable Bombay High Court ITA 330/12 dismissed the Appeal of the Revenue. From the order of the ITAT, the Revenue approached this Court by way of an Appeal. After examining the entire factual matrix of the matter and the law on the subject, this Court held as under :- If there be interest-free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be p .....

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out of the overdraft account for the running of the business and in these circumstances the appellant was entitled to claim the deductions. The Supreme Court noted that the argument had considerable force, but considering the fact that the contention had not been advanced earlier it did not require to be answered. It then noted that in Woolcombers of India Ltd.'s case (1982) 134 ITR 219 the Calcutta High Court had come to the conclusion that the profits were sufficient to meet the advance t .....

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oans taken, then a presumption would arise that investments would be out of the interest-free funds generated or available with the company if the interest-free funds were sufficient to meet the investment. In this case this presumption is established considering the finding of fact both by the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal. (emphasis supplied) 5. We find that the facts of the present case are squarely covered by the judgment in the case of Reliance U .....

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ent of this Court in the case of Reliance Utilities and Power Ltd. (supra), it would have to be presumed that the investment made by the Assessee would be out of the interest free funds available with the Assessee. We therefore, are unable to agree with the submission of Mr Suresh Kumar that the Tribunal had erred in dismissing the Appeal of the Revenue on this ground. We do not find that question (A) gives rise to any substantial question of law and is therefore rejected. 25. Therefore respectf .....

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d. DR relied up on the orders of AO. Whereas the LD AR submitted that this issues was decided by CIT appeal in favour of the assessee for AY 2006-07 and though on other counts revenue appealed before ITAT but not on this issue. He took us to page no 52-73 of the orders of CIT (A) where in this issue is discussed. Therefore, he submitted that the department accepts this issue in favour of assessee. 28. We have carefully considered the issue. Ao has brought to tax an amount of ₹ 98.12 crores .....

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the issue. Further, the revenue has also not contested this issue in earlier years. Hon Bombay high court in case of CIT V HDFC bank Limited in 366 ITR 505 has held that even after the decision of Hon. supreme court in case of CIT v Vijaya bank (187 ITR 541) broken period interest is allowable to the assesse. The issue raised before Honourable High court was (B) Whether the ITAT was correct in law in holding that the broken period interest is allowable as a deduction, inspite of the Hon'ble .....

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Corpn. v. CIT [2002] 258 ITR 601/125 Taxman 488. On going through the said judgment, we find that question (B) reproduced above and projected as substantial by Mr Suresh Kumar is squarely answered by the judgment of this Court in the case of American Express International Banking Corpn. (supra). In view thereof, we do not find that even question (B) gives rise to any substantial question of law that needs to be answered by this Court. Therefore respectfully following the decision of Honourable B .....

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s AO granted the depreciation @ 15 % as plant and machinery. 30. Before us, Ld. DR relied on the order of AO. 31. Ld. AR submitted that this issue is decided by Hon ITAT in assessee s own case for A Y 2006-07 in ITA 22/Del /2011 and 173/del /2011. He further relied on decision of Hon Delhi high court where it is held that depreciation on such assets is eligible for depreciation @ 60 % and not 15%. 32. We have carefully considered the issue. LAN (local Area Network) and WAN *(wide area network) i .....

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er cent . Therefore following the decision of Jurisdictional high court we also hold that on WAN and LAN equipment are used with computers only same are also eligible for depreciation @ 60 % therefore, we confirm the order of CIT (A) in deleting the granting depreciation of disallowance of ₹ 5,77,71,439/ - made by the AO on account of excess claim of depreciation of LAN and WAN equipment . Therefore ground no three of the appeal is dismissed. 33. Ground No 4 of the appeal is That on the fa .....

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