2019 (1) TMI 464 - AT - Income Tax

Depreciation on POS Terminals - depreciation claimed by assessee company at a higher rate of 60% - Classification of computer peripherals and accessories for the purpose of depreciation - Held that - We find the Hon ble Delhi High Court in the case of Pr. CIT Vs. Connaught Plaza Restaurant 2016 (9) TMI 1485 - DELHI HIGH COURT has considered the issue i.e. Higher rate of depreciation on POS TERMINALS and has upheld the decision of the Tribunal where it has been held that assessee is entitled to depreciation @ 60% on POS TERMINALS. - Decided against revenue Expenditure on account of legal, professional and consultancy expenses - business expenditure OR expenses incurred in the nature of capital expenditure - Held that - We find the Hon ble Delhi High Court in the case of CIT Vs. ACL Wireless Ltd. 2013 (12) TMI 1160 - DELHI HIGH COURT has held that expenditure incurred in ordinary courses of business on upgradation, improvement, removal of glitches of existing or already developed software to improve its product is to be treated as revenue expenditure. Also in the case of Oriental Bank of Commerce Vs. Additional CIT reported 2018 (4) TMI 1534 - DELHI HIGH COURT has held that expenditure incurred by assessee on acquiring licenses to use software which did not confer any enduring benefit on assessee was to be allowed as deduction u/s 37 (1). Since the Ld. CIT (A) in the instant case has given a finding that the expenditure is recurring in nature and not a onetime expenditure, therefore, in absence of any contrary material brought to our notice on this factual finding, the order of the CIT(A) on this issue is justified - decided against revenue

Issues Involved:
1. Depreciation rate on POS terminals.
2. Classification of legal, professional, and consultancy expenses.
3. Classification of advertisement and marketing expenses.

Detailed Analysis:

1. Depreciation Rate on POS Terminals:
The primary issue was whether POS terminals should be classified under the block of assets as "computers" eligible for 60% depreciation or as "plant and machinery" eligible for 15% depreciation. The Assessing Officer (AO) argued that POS terminals are electronic devices, not computers, and should be depreciated at 15%. The AO's reasons included the lack of a CPU, hard disk, and other computer components in POS terminals, their use of preloaded software, and their limited functionality compared to computers.

The CIT(A) overturned the AO's decision, referencing the Tribunal's decision in the case of Pr. CIT Vs. M/s. Connaught Plaza Restaurant (P) Ltd., which categorized POS terminals as computers due to their similar features and functionalities. The Tribunal upheld the CIT(A)'s decision, noting that the Delhi High Court had previously ruled in favor of treating POS terminals as computers for depreciation purposes.

2. Classification of Legal, Professional, and Consultancy Expenses:
The AO classified payments made to Interglobe Technologies and Wipro Ltd. for software development services as capital expenditures, arguing they provided enduring benefits. The AO allowed depreciation at 60% instead of treating them as revenue expenditures.

The CIT(A) disagreed, stating that the expenses were recurrent and necessary for the business's smooth operation, thus qualifying as revenue expenditures. The CIT(A) cited several judicial decisions supporting this view, including CIT Vs. Asahi India Safety Glass Ltd. The Tribunal upheld the CIT(A)'s decision, referencing the Delhi High Court's rulings in CIT Vs. ACL Wireless Ltd. and Oriental Bank of Commerce Vs. Additional CIT, which treated similar expenditures as revenue in nature.

3. Classification of Advertisement and Marketing Expenses:
The AO treated advertisement and marketing expenses of ?3,90,82,609/- as capital expenditures, allowing depreciation at 15%. The AO argued that these expenses provided enduring benefits to the business.

The CIT(A) reversed this decision, treating the expenses as revenue expenditures under Section 37 of the IT Act. The CIT(A) relied on decisions from the Delhi High Court in CIT Vs. Salora International Limited and CIT Vs. Pepsico India Holdings India Private Limited, which classified similar expenses as revenue in nature. The Tribunal upheld the CIT(A)'s decision, noting that the genuineness of the expenses was not in dispute and referencing the Delhi High Court's rulings in CIT Vs. Pepsico Holdings India Private Limited and CIT Vs. Orient Ceramics and Industries Ltd., which supported treating such expenses as revenue expenditures.

Conclusion:
The Tribunal dismissed the revenue's appeal, upholding the CIT(A)'s decisions on all issues. The POS terminals were classified as computers eligible for 60% depreciation, legal and consultancy expenses were treated as revenue expenditures, and advertisement and marketing expenses were also treated as revenue expenditures. The Tribunal's decisions were consistent with previous rulings from the Delhi High Court and other judicial precedents.

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