TMI Blog2018 (4) TMI 1915X X X X Extracts X X X X X X X X Extracts X X X X ..... ion @ 60% or @ 25% he held that there is Hon'ble Jurisdictional High Court decision, wherein it has been held that for computer peripherals like software depreciation should be allowed @ 60% - there is no legal or factual infirmity in the order of the ld. CIT(A) - Decided against revenue. - I.T.A. No. 4985/DEL/2014 - - - Dated:- 25-4-2018 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For the Appellant : Shri Amit Jain, Sr.D.R. For the Respondent : Shri H.P. Agrawal, Adv. ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the Revenue against the impugned order dated 18.06.2014, passed by learned CIT (Appeals)-XV, New Delhi for the quantum of assessment pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery as per Depreciation chart under Income Tax Act. As per 3CD Report the assessee is not a manufacturer but is engaged in the distribution of natural gas in the commercial and domestic sector and compressed natural gas in the automobiles. Therefore, the additional depreciation claimed by the assessee is not allowable expenditure as it has not fulfilled the conditions. Further the assessee has claimed and has been allowed depreciation on intangible software @ 60% as applicable to computer instead of 25% as applicable to intangible assets. Thus the assessee has claimed excess depreciation of ₹ 1,32,62,985/- on software. By doing so, the assessee has claimed excess additional depreciation and excess depreciation of ₹ 2,63,00,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer and same material and tax audit report has been used for reopening the assessment which is bad in law as it amounts to change of opinion . Various decisions were cited and relied upon which has been incorporated by the ld. CIT (A) at pages 5 to 6 of the appellate order. On merits, it was submitted that now there are number of judgments including that of Hon'ble Delhi High Court in the case of BSES Rajdhani Powers Ltd., 40 taxman.com 108 (Del), wherein Hon'ble High Court has upheld the depreciation @ 60% on computer peripherals on the issue of additional depreciation also no new tangible material has come on record and entire details of additional depreciation allowance was there in the audit report which has been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, nowhere it has been mentioned that the appellant was not a 'manufacturer'. The business of distribution of natural gas itself may itself involve certain manufacturing activities, which could not be viewed on perusal of the basic information given under this item alone but requires appreciation of full range of facts to arrive at a decision. The Ld. AO has been vested with vide investigation powers in this regard and in expected to exercise the same before passing quasi-judicial orders. While the AO may have observed that the appellant was engaged in 'distribution of natural gas', on the strength of such unsubstantiated observation alone, it will be too simplistic to hold that the appellant was not a 'manufacturer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer has sought to take different opinion which is now permissible in law in view of the judgment of Hon'ble Supreme Court in the case of CIT vs. Kelvinator of India Ltd, reported in 320 ITR 561. Secondly, in so far as rate of depreciation on computer software is concerned, now it is well settled proposition of various courts including that of Hon'ble Jurisdictional High Court that deprecation for the computer peripherals and the software has to be allowed @ 60% and hence on this count also depreciation allowed @60% by the ld. CIT (A) is correct in law. Lastly, on the issue of additional allowance of depreciation, it has been elaborately discussed that the assessee has been treated as manufacturer under Excise Duty Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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