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TMI Blog2019 (6) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... orce in the argument of the ld DR that the assessee should have obtained audit report and submit the same before the ld AO atleast before the completion of assessment proceedings. The orders of the lower authorities does not speak about the same and since this being a statutory requirement, we deem it fit and appropriate, in these peculiar facts and circumstances, in the interest of justice and fairplay, to remand the matter to the file of ld AO only for the limited purpose to verify whether the assessee had submitted the audit report for claiming deduction u/s 80JJAA of the Act and decide the issue in the light of the aforesaid decision of this tribunal in assessee s own case for the earlier years. Accordingly, the grounds raised by the revenue are allowed for statistical purposes. - I.T.A.Nos. 2564 & 2565/CHNY/2018, I.T.A.Nos. 2584/CHNY/2018 - - - Dated:- 7-6-2019 - SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER For the Appellant : Shri Sriram Seshadri, CA For the Respondent : Shri M. Srinivasa Rao, CIT ORDER PER M. BALAGANESH, ACCOUNTANT MEMBER: These appeals of the assessee arise out of the orders of the Ld. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Rules, 1962 on the basis of functional similarities between ATMs and Computers and on the ground that ATM machines are computerized telecommunication device and would fall under the definition of computer network which is included in the definition of computers as per the provisions of section 2(i) of the Information Technology Act, 2000. It was also pleaded that the ATM would not work and operate unless it is computerized and linked with the main server. The assessee pleaded that the functions performed by ATMs are to be construed at par with Computers and accordingly entitled for depreciation at the rate at which computers are eligible. The ld AO however disregarded the contentions of the assessee and treated the ATMs as mere Electronic devices and granted depreciation at the rate of 15% by placing reliance on the decision of Hon ble Karnataka High Court in the case of Diebold Systems (P) Ltd vs CIT reported in (2006) 144 STC 59 (Kar), wherein the Hon ble Court examined the question whether an ATM machine as a computer with reference to Entry 20(2)(b) of Part C of the Second Schedule to the Karnataka VAT Act, 2003 captioned Computer Terminals . This action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the same software which is used in the computer. We also find that similar issue has been addressed by the Special Bench of Mumbai Tribunal in the case ofDy. CIT v. Datacraft India Ltd. [2010] 40 SOT 295 wherein the definition of 'computer' given by the Information Technology Act, 2000 has been discussed and it has been held that the computer is to perform logical, arithmetical and memory functions on data etc and it is not only the equipment which perform such functions that could be called as computer but includes all input and output devices which are connected to or related to it. The Special Bench accordingly held that routers and switches are also to be included in the block of computers entitled to depreciation at the rate of 60%. We find that the ATM machine is doing the logical, arithmetic and memory functions by manipulations of electronic magnetic or optical impulses giving debit or credit cash and thereafter dispenses the case and gives a printed receipt and hence it could be safely concluded that computer is an integral part of ATM machine and on the basis of the information processed by the computer in the ATM machine only, the mechanical functions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act. In this regard, we find that the Hon ble Supreme Court in the case of Jagatram Ahuja vs CIT reported in 246 ITR 609 (SC) had observed as under:- 23. We find that Kantilal Trikamlal's case (supra)supports the view taken in N.S. Getti Chettiar's case (supra). Added to this, section 2(15) of the Estate Duty Act, defining 'property' carne up for consideration in Kantilal Trikamlal's case (supra) . We may state here itself that the word sand expressions defined in one statute as judicially interpreted do not afford a guide to construction of the same words or expressions in another statute unless both the statutes are paramateria legislations or it is specifically so provided in one statute to give the same meaning to the words as defined in other statute. The aim and object of the two legislations, namely, the Gift-tax Act and the Estate Duty Act are not similar. It is obvious that the purpose behind introduction of Karnataka VAT Act and Income Tax Act 1961 are totally different and moreover one is a state legislation and another is a central legislation. Hence the words and expressions in one statute cannot be imported into another statute unless bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Delhi Bench of Tribunal in the matter of DCIT v. Global Trust Bank (ITA No. 474/D/09) wherein it has been held that ATM was a computer equipment and depreciation @ 60% was allowed. So far as the use of software is concerned, the Tribunal records a fact that the evidence of the use of the software on 31/3/2008 was produced before the Tribunal. Thus, the Tribunal held that depreciation @ 30% on software was rightly claimed. 6) We note that the Tribunal has arrived at a finding of fact on all the three questions. The revenue has not been able to show that the above finding of fact is perverse. Thus, we do not see any reason to entertain question (i) , (ii) and (iii) above. 7) Accordingly, the appeal is dismissed with no order as to costs. 6.4. We find that the Hon ble Apex Court in the case of CIT vs Vegetable Products Ltd reported in 88 ITR 192 (SC) had held that when there are two conflicting decisions of two different high courts (non-jurisdictional) , then the construction that is favourable to the assessee is to be adopted. 6.5. Hence in the instant case, the decision of Hon ble Bombay High Court supra which was rendered in the context of Income Tax Act and duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 also. Aggrieved, the assessee preferred an appeal before the ld CITA, who by placing reliance in the order of this tribunal in assessee s own case for the Asst Year 2012-13 in ITA No. 1549/Mds/2017 dated 28.11.2017 and for the Asst Year 2011-12 in ITA No. 1070 1071/Mds/2016 dated 30.9.2016 directed the ld AO to grant deduction u/s 80JJAA of the Act to the assessee. Aggrieved, the revenue is in appeal before us. 8.2. We have heard the rival submissions. We find that the ld DR argued that there is no evidence to prove that the assessee had submitted the audit report for the claim of deduction u/s 80JJAA of the Act before the ld AO as mandated in the said section. Accordingly, the assessee should not be granted deduction u/s 80JJAA of the Act. Per contra, the ld AR stated that the issue under dispute is squarely covered by the decision of this tribunal in assessee s own case for Asst Years 2011-12 and 2012-13 supra wherein it was held as under:- 25. As per the memorandum to Finance Act, 1988, sec. 80JJAA, the Government of India considered it necessary to provide fiscal incentives in Income-tax Act, in order to encourage the employers to create more and more employment op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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