TMI Blog2021 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed reasons, the substantial question of law No.4 is answered against the assessee and in favour of the revenue. - I.T.A. NO.569 OF 2017 - - - Dated:- 15-6-2021 - HON BLE MR. JUSTICE ALOK ARADHE AND HON BLE MR. JUSTICE HEMANT CHANDANGOUDAR APPELLANT (BY SRI. T. SURYANARAYANA, ADV.,) RESPONDENT (BY SRI. K.V. ARAVIND, ADV.) JUDGMENT ALOK ARADHE J., This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the assessee. The subject matter of the appeal pertains to the Assessment year 2008-09. The appeal was admitted by a bench of this Court on the following substantial questions of law: (i) the Tribunal was correct in upholding the validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank of Mysore and was a subsidiary of State Bank of India constituted under the State Bank of India (Subsidiary Banks) Act, 1959. The assessee filed the return of income for the Assessment Year 2008-09 declaring total income of ₹ 446,01,43,740/-. The assessee in its return claimed depreciation on Automated Teller Machines (ATMs) at the rate of 60% by classifying it to be 'computers'. The return was processed under Section 143(1) of the Act on 29.04.2009 and subsequently, a scrutiny assessment was concluded under Section 143(3) of the Act by an order dated 07.12.2010 determining the taxable income of the assessee at ₹ 531,30,96,281/-. The Joint Commissioner of Income Tax re-opened the assessment for the assessment in q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-opening of the assessment (ii) proposed proceeding should not be on account of mere change of opinion were not fulfilled. It is also argued that re assessment proceeding cannot be initiated on account of 'borrowed satisfaction' that income chargeable to tax has escaped assessment. It is also urged that ATMs are computers and are eligible for depreciation at the rate of 60% and the substantial question of law Nos.3 and 4 have already been answered in favour of the assessee by a division bench decision of this court in 'CIT VS. NCR CORPORATION (P) LTD., (2020) 117 TAXMANN.COM 252 (KAR). It is also submitted that tribunal as well as the Commissioner of Income Tax (Appeals) and the Assessing Officer erred in not allowing depre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that he was the owner of depreciable asset and that the amount has been expended wholly for the purposes of business. It is also pointed out that all the authorities under the Act have held that assessee has failed to discharge the aforesaid burden as he had not produced the invoices. It is also urged that the decision in case of JAY ENGINEERING WORKS supra is misconceived as in the aforesaid case, the books of accounts were not available as the same were destroyed in fire and therefore, statutory report was taken into account as secondary evidence. It is urged that in the instant case the assessee is in possession of the invoices, however, he has failed to produce the same. It is also urged that the finding in this regard is in conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 supra, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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