Indian Bank, CHENNAI V. DCIT, CHENNAI

ITA 1265/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8168 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 05-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2015
• Court: TRIBUNAL
• Department Lawyers: DEBENDRA N KAR
• Assessee Lawyers: S SWAMINATHAN
• Keywords: Depreciation; Rule of consistency; Revised return
• Section: 143(3); 115JB; 148

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER I.T.A.NO S . 1264 AND 1265/MDS/2015 ASSESSMENT YEAR S :20 0 6 - 0 7 & 2008 - 09 INDIAN BANK, CORPORATE OFFICE, ACCOUNTS DEPARTMENT, 254 - 260, AVVAI SHANMUGAM SALAI, ROYAPETTAH, CHENNAI 600 0 14 . [PAN: A AACI1607G ] VS. THE DEPUTY COMMISSIONER OF INCO ME TAX , CORPORATE CIRCLE II ( 2 ), CHENNAI. ( / APPELLANT ) ( / RESPONDENT ) I.T.A.NO S . 1910 AND 1911/MDS/2015 ASSESSMENT YEAR S :200 6 - 0 7 & 2008 - 09 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE II(2), CHENNAI. VS. INDIAN BANK, CORPORATE OFFICE, ACCOUNTS DEPARTMENT, 254 - 260, AVVAI SHANMUGAM SALAI, ROYAPETTAH, CHENNAI 600 014. ( / APPELLANT ) ( / RESPONDENT ) ASSESSEE BY : SHRI S. SWAMINATHAN, C.A. DEPARTMENT BY : SHRI DEBENDRA N. KAR , CIT / DATE OF HEARING : 05 . 0 1 .201 6 / DATE OF P RONOUNCEMENT : 22 . 0 1 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH E S E CROSS APPEAL S FILED BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CIT (APPEALS) - 6 , CHENNAI , DATED 05 . 0 3 . 20 1 5 RELEVANT TO THE ASSESSMENT YEAR S 200 6 - 0 7 AND 2008 - 09 . I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 2 THE FOLLOWING COMMON GROUNDS HAVE BEEN RAISED IN BOTH THE APPEALS OF THE ASSESSEE: 2. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ASSESSMENT WAS REOPENED WITHOUT JURISDICTION AND A CCORDINGLY, THE ORDER OF THE ASSESSING AUTHORITY IS BAD IN LAW. 3. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT AUTOMATED TELLER MACHINES ARE SUBSTANTIALLY IN THE NATURE OF COMPUTERS AND HENCE, ARE ELIGIBLE FOR DEDUCTION AT THE RATE OF 60% AND NOT AT 1 5% AS APPLICABLE TO OTHER NORMAL PLANT AND MACHINERY. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A NATIONALIZED BANK AND CENTRAL PUBLIC SECTOR UNDERTAKING . THE ASSESSEE, E - FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR S 2006 - 07 AND 2008 - 09 ON 31.10.2006 AND 28.09.2009 , DECLARING TOTAL INCOME OF . NIL UNDER THE NORMAL PROVISIONS OF THE INCOME TAX ACT AND BOOK PROFIT OF .404,81,33,910/ - FOR THE ASSESSMENT YEAR 2006 - 07 AND .1220,40,10,460/ - FOR THE ASSESSMENT YEAR 2008 - 09 UNDER THE PROVISIONS OF SECTION 115JB OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] . THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2006 - 07 ON 31.12.2008 AND FOR THE ASSESSMENT YEAR 2008 - 09 ON 31.12.2010 . THEREAFTER, FOR THE ASSESSMENT 2006 - 07, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 13.03.2013 AND IN RESPONSE TO THE NOTICE, THE ASSESSEE HAS FILED REVISED RETURN ON 10.04.2013 AND FURNISHED VARIOUS DETAILS CALLED FOR. AFTER VERIFY ING THE DETAILS FILED BY THE ASSESSEE, THE ASSESSING OFFICER MADE VARIOUS I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 3 ADDITIONS AND COMPLETED THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT ON 27.02.2014. SIMILARLY, FOR THE ASSESSMENT YEAR 2008 - 09, NOTICE UNDER SECTION 148 OF THE ACT WAS I SSUED ON 23.02.2013, THE ASSESSEE BANK ELECTRONICALLY UPLOADED REVISED RETURN ON 28.03.2013. AFTER VERIFYING THE DETAILS FILED BY THE ASSESSEE, THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED ON 21.03.2014. 3. THE ASSESSEE CARRIE D THE MATTER IN APPEAL BEFORE THE LD. CIT(A ) FOR BOTH THE ASSESSMENT YEARS AND CHALLENGED THE VALIDITY OF REOPENING OF THE ASSESSMENTS UNDER SECTION 147 OF THE ACT. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND EXAMINING THE REASONS RECORDED FOR RE OPENING OF THE ASSESSMENTS AND THE PROVISIONS OF SECTION AND ALSO BY CONSIDERING VARIOUS JUDICIAL PRONOUNCEMENT, THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSMENT REOPENED BY THE ASSESSING OFFICER IS WITHOUT JURISDICTION AND THE ORDER OF THE ASSESSING OFFICER IS BAD IN LAW. 5. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED SIMILAR ISSUE HAS BEEN RAISED BEFORE THE TRIBUNAL IN ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 4 YEARS VIDE ITS CONSOLIDATED ORDER DATED 30.11.2015 CONFIRMED THE ORDER OF THE LD. CIT(A) AND THE SAME MAY BE FOLLOWED. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THRO UGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT SIMILAR ISSUE ON IDENTICAL FACTS HAS BEEN RAISED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2007 - 08, 2008 - 09, 2009 - 10, 2007 - 08, 2005 - 06, & 2010 - 11 IN I.T.A. NOS. 880/MDS/2010, 1923/MDS/2011, 1871/MDS/2012, 13 95, 1396 & 1397/MDS/2014 AND THE TRIBUNAL VIDE ITS CONSOLIDATED ORDER DATED 30.11.2015 CONFIRMED THE ORDER PASSED BY THE LD. CIT(A). IN VIEW OF THE ABOVE FOR THE ASSESSMENT YEARS 2006 - 07 AND 2008 - 09 ALSO, WE CONFIRM THE ORDER OF THE LD. CIT(A) ON THIS ISSU E AND ACCORDINGLY, WE DISMISS THE GROUND RAISED BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS. 7. THE SECOND COMMON GROUND RAISED BY THE ASSESSEE IS WITH REGARD TO CONFIRMATION OF DISALLOWANCE OF EXCESS DEPRECIATION ON ATMS. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SIMILAR ISSUE ON IDENTICAL FACTS HAS BEEN RAISED IN ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT YEARS AND THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 30.11.2015 MAY BE FOLLOWED FOR ASSESSMENT YEARS UNDER APPE AL. 8. AFTER HEARING BOTH SIDES, WE FIND THAT SIMILAR ISSUE ON IDENTICAL FACTS HAS BEEN DECIDED BY THE COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEE S I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 5 OWN CASE FOR EARLIER ASSESSMENT YEARS VIDE TRIBUNAL S ORDER DATED 30.11.2015, WHEREIN, THE TRIBUNAL HAS OBSERVED AND HELD AS UNDER: 12. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. REGARDING ALLOWABILITY OF 60% DEPRECIATION ON THE ATMS, THE ASSESSING OFFICER HAS OBSERVED THAT THE ATMS IS DIFFE RENT TYPE OF MACHINE, DIFFERENT FROM THOSE OF COMPUTERS AND ALLOWED DEPRECIATION @ 15% ONLY AS APPLICABLE TO PLANT AND MACHINERY. THE LD. CIT(A) HAS CONFIRMED THE ORDER PASSED BY THE ASSESSING OFFICER. BEFORE US, THE LD. DR HAS PLACED RELIANCE ON THE DECIS ION IN THE CASE OF VENTURE INFORTECH GLOBAL (P) LTD. V. DCIT (2008) 25 SOT 184 (MUM), WHEREIN THE MUMBAI BENCHES OF THE TRIBUNAL HAS HELD THAT HIGHER RATE OF DEPRECIATION OF @ 60% TO ATM CANNOT BE ALLOWED., HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE, BY FIL ING COPY OF THE ORDER OF THE DELHI BENCHES OF THE TRIBUNAL, AT PAGE 221 IN THE PAPER BOOK, IN THE CASE OF DCIT V. GLOBAL TRUST BANK LIMITED IN ITA NO. 474/DEL/2009 DATED20.04.2011 HAS STRONGLY CONTENDED THAT DEPRECIATION @ 60% TO ATM SHOULD BE ALLOWED. IN THE CASE OF DCIT V. GLOBAL TRUST BANK LIMITED (SUPRA), THE TRIBUNAL HAS OBSERVED AS UNDER: 5. IN THE PRESENT APPEAL, WE ARE ONLY CONCERNED WITH THE GROUND REGARDING ASSESSEE'S CLAIM OF DEPRECIATION ON LAN, WAN, ATM ETC. AT 60% AS AGAINST 25% ALLOWED BY THE AO. THE OTHER GROUNDS OF APPEAL RAISED BY THE REVENUE IN THIS APPEAL ARE NOT MAINTAINABLE FOR WANT OF COD APPROVAL, AND THEY HAVE ALSO NOT BEEN RESTORED BACK FOR FRESH DISPOSAL WHILE RECALLING THE TRIBUNAL'S EARLIER ORDER DATED 17.6.2009. 6. IN THE COURSE OF HEARING OF THIS APPEAL, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON SEVERAL DECISIONS INCLUDING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. BSES RAJDHANI POWER LTD. IN ITA NO.1266/2010. THE HON'BLE DELHI HIGH COURT IN THE AFORESAID CASE VIDE ORDER DATED 31.08.2010 HAS HELD THAT COMPUTER ACCESSORIES AND PERIPHERALS SUCH AS PRINTERS, SCANNERS AND SERVER ETC. FORMED AN INTERNAL PART OF THE COMPUTER SYSTEM AND, IN FACT, THE COMPUTER ACCESSORIES AND PERIPHERALS CANNOT BE USED W ITHOUT THE COMPUTER. THE HON'BLE HIGH COURT THUS HELD THAT THEY ARE THE PART OF THE COMPUTER SYSTEM AND ARE ENTITLED TO DEPRECIATION AT THE HIGHER RATE OF 60%. IN THE PRESENT CASE, WE ARE CONCERNED ABOUT THE DEPRECIATION ON LAN, WAN, ATM EQUIPMENTS. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS PURCHASED CERTAIN EQUIPMENTS IN THE FORM OF LAN, WAN, ATM ETC. I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 6 APART FROM COMPUTER AND OTHER RELATED ITEMS. IT IS NOT IN DISPUTE THAT LAN, WAN, ATM EQUIPMENTS CANNOT BE USED WITHOUT THE COMPUTER. IN THE CASE OF DCIT VS. DATACRAFT INDIA LTD. - (2010) 6 TAXMANN.COM 85 (MUM. - ITAT)(SB), THE ITAT SPECIAL BENCH OF MUMBAI HAS OBSERVED THAT ROUTER IS A HARDWARE DEVICE THAT ROUTES DATA FROM A LOCAL AREA NETWORK (LAN) TO ANOTHER NETWORK CONNECTION. IN THAT CASE, THE SPE CIAL BENCH HAS TAKEN A VIEW THAT ROUTERS AND SWITCHES IN THE CIRCUMSTANCES OF THAT CASE ARE TO BE INCLUDED IN THE BLOCK OF COMPUTER ENTITLED TO RATE OF DEPRECIATION AT 60%. SINCE THE LAN, WAN, ATM ETC. CANNOT FUNCTION WITHOUT A COMPUTER, THEY CAN BE HELD T O BECOME A PART AND PARCEL OF COMPUTER AND AS LONG AS THEY ARE AN INTEGRAL PART OF THE COMPUTER, THEY ARE CLASSIFIED AS A COMPUTER. 7. AUTOMATED TELLER MACHINE OR AUTOMATIC TELLER MACHINE (ATM) IS THE COMPUTERIZED TELECOMMUNICATION DEVICE THAT ALLOWS BA NK'S CUSTOMERS TO ACCESS THE BANK AT PLACES OTHER THAN THE NORMAL BANK WITHOUT HAVING TO TAKE THE TROUBLE TO GO TO THE BANK IN PERSON AND COLLECT THE CASH AS IS DONE UNDER THE CONVENTIONAL METHOD OF WITHDRAWING MONEY FROM THE BANK. THE ATM MACHINES ARE COM PUTERIZED MACHINES WHICH NOT ONLY ALLOW THE CUSTOMERS TO WITHDRAW MONEY BUT THEY CAN CHECK THE ACCOUNT BALANCE, PAY BILLS, PURCHASE GOODS AND SERVICES, AND THEREFORE, UNLESS IT IS COMPUTERIZED AND LINKED WITH THE MAIN SERVER, IT IS NOT POSSIBLE TO OPERATE THE ATM. 8. THE LAN EQUIPMENT IS CALLED LOCAL AREA NETWORK EQUIPMENT WHICH IS PART OF THE COMPUTER HARDWARE WHICH ENABLES FOR A GROUP OF COMPUTERS AND ASSOCIATED COMPUTER DEVICES TO SHARE THE DATA THROUGH THIS DEVICE. IN OTHER WORDS, THE DATA IS STORED AT SINGLE COMPUTER PROCESSOR OR SERVER AND ALL THE OTHER COMPUTERS ARE CONNECTED THROUGH LOCAL AREA NETWORK EQUIPMENT AND THE SINGLE PROCESSOR CAN BE ACCESSED BY THE OTHER COMPUTERS AND THE DATA STORED IS USED BY THE OTHER COMPUTERS. 9. THE WAN EQUIPMEN T IS CALLED WIDE AREA NETWORK, MEANING, TWO OR MORE LAN WOULD FORM A WAN I.E. TO COVER LARGE GEOGRAPHICAL AREA. THE COMPUTER NETWORK IS DONE BY USE OF WIDE AREA NETWORK EQUIPMENT. THUS, THIS IS ALSO AN INTEGRAL PART OF COMPUTER HARDWARE. 10. IN THIS CON NECTION, A REFERENCE IS ALSO INVITED TO THE INFORMATION TECHNOLOGY ACT, 2000 WHEREIN SECTION 2(I) DEFINES THE I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 7 TERM 'COMPUTERS' WHICH ALSO INCLUDES 'COMPUTER NETWORK'. THE TERM 'COMPUTER NETWORK' MEANS THE INTERCONNECTION OF ONE OR MORE COMPUTERS THROUGH TH E USE OF SATELLITE, MICROWAVE, TERRESTRIAL LINE OR OTHER COMMUNICATION MEDIA, AND TERMINALS OR A COMPLEX CONSISTING OF TWO OR MORE INTERCONNECTED COMPUTERS WHETHER OR NOT THE INTERCONNECTION IS CONTINUOUSLY MAINTAINED. FROM THIS ANGLE ALSO, LAN, WAN AND AT M WOULD UNDOUBTEDLY FORM A PART OF COMPUTER. 11. IN THE LIGHT OF THE VIEW WE HAVE TAKEN ABOVE, WE DIRECT THE AO TO ALLOW DEPRECIATION AT THE RATE OF 60% ON LAN, WAN AND ATM EQUIPMENTS. WE ORDER ACCORDINGLY. 13. RESPECTFULLY FOLLOWING THE DECISION OF THE DELHI BENCHES OF THE TRIBUNAL IN THE CASE OF DCIT V. GLOBAL TRUST BANK LIMITED (SUPRA), WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO ALLOW DEPRECIATION @ 60% TO ATMS. THUS, THE GROUND RAISED BY THE A SSESSEE IS ALLOWED AND SUBJECT TO RECOMPUTATION OF WDV FOR EACH ASSESSMENT YEAR ACCORDINGLY. 9. THE LD. DR COULD NOT CONTROVERT THE ABOVE FINDINGS OF THE TRIBUNAL. RESPECTFULLY, FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE, WE DIR ECT THE ASSESSING OFFICER TO ALLOW DEPRECIATION @ 60% TO ATMS SUBJECT TO RECOMPUTATION OF WDV FOR EACH ASSESSMENT YEAR. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED SUBJECT TO THE ABOVE FOR BOTH THE ASSESSMENT YEARS . 10. NO OTHER GROUND HA S BEEN RAISED BY THE ASSESSEE AND ACCORDINGLY, BOTH THE APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. 11. THE FIRST GROUND COMMON GROUND RAISED IN THE APPEALS OF THE REVENUE FOR THE ASSESSMENT YEAR 2006 - 07 AND 2008 - 09 RELATES TO DELETION OF ADDITION TOWARDS DEPRECIATION FOR UPS. WITH REGARD TO THE CLAIM OF DEPRECIATION @ I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 8 60% ON UPS, THE ASSESSING OFFICER HAS HELD THAT IT CANNOT BE TREATED AS COMPUTERS AND ACCORDINGLY RESTRICTED THE CLAIM OF DEPRECIATION TO 15%. ON APPEAL, BY FOLLOWING THE DECISION IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEARS 2007 - 08 AND 2010 - 11, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO ALLOW THE DEPRECIATION ON UPS @ 60%. 12. AGGRIEVED, THE REVENUE IS IN APPEAL FOR BOTH THE ASSESSMENT YEARS BEFORE THE TRIBUNAL AND THE LD . DR HAS SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO ALLOW DEPRECIATION ON UPS @ 60%. THE LD. DR HAS RELIED ON THE DECISION OF THE DELHI BENCHES OF ITAT IN THE CASE OF NESTLE INDIA LTD. V. DCIT 111 TTJ 498. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE TRIBUNAL DATED 30.11.2015 IN ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT YEARS AND PRAYED THAT THE SAME MAY BE FOLLOWED. 13. AFTER HEARING BOTH SIDES, WE FIND THAT SIMILAR ISSUE O N IDENTICAL FACTS HAS BEEN CONSIDERED I N THE REVENUE S APPEALS IN I.T.A. NO. 2124 & 2125/MDS/2014 FOR THE ASSESSMENT YEARS 2005 - 06 AND 2007 - 08 IN ASSESSEE S OWN CASE BY THE COORDINATE BENCH OF THE TRIBUNAL VIDE ITS COMMON ORDER DATED 30.11.2015, WHEREIN TH E TRIBUNAL HAS OBSERVED AS UNDER: 20. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WITH REGARD TO ALLOWABILITY OF 60% DEPRECIATION ON THE UPS, THE ASSESSING OFFICER HAS HELD THAT I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 9 THESE CANNOT BE TREATED AS COMPUTER RESTRICTED THE CLAIM OF DEPRECIATION TO 15% AS AGAINST 60% CLAIMED BY THE ASSESSEE. ON APPEAL, THE LD. CIT(A), BY FOLLOWING THE DECISION OF THE CHENNAI BENCHES OF TRIBUNAL IN THE CASE OF INDIAN OVERSEAS BANK IN I.T.A. NO. 99/MDS/201 0 DATED 19.03.2013, HAS HELD THAT THE UPS ATTACHED TO THE COMPUTERS ARE PART OF COMPUTER SYSTEMS AND ELIGIBLE FOR DEPRECIATION @ 60% AND DIRECTED THE ASSESSING OFFICER TO ALLOW DEPRECIATION ON UPS @ 60%. WITH REGARD TO ALLOWABILITY OF DEPRECIATION @ 60% ON UPS, WHILE CONSIDERING SIMILAR ISSUE RAISED IN THE CASE OF INDIAN OVERSEAS BANK (SUPRA), BY FOLLOWING THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF ORIENTAL CERAMICS & INDUSTRIES LTD. 56 DTR (DEL) 397, THE TRIBUNAL HAS OBSERVED AS UNDER: 2 8. WE DO NOT AGREE WITH THE SUBMISSIONS OF THE AR THAT THE UPS IS AN ENERGY SAVING DEVICE, THEREFORE, DEPRECIATION @ 80% SHOULD BE GRANTED. HOWEVER, WE ARE IN CONSONANCE WITH THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF ORIENT CERAMICS & INDUST RIES LTD. (SUPRA) WHEREIN THE HON BLE COURT HAS GRANTED DEPRECIATION @ 60% BY TREATING UPS AS PART OF COMPUTER HARDWARE. ACCORDINGLY, WE ALLOW DEPRECIATION @ 60% ON UPS AND PARTLY ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 21. AT THE TIME OF HEARING, T HE LD. DR HAS RELIED ON THE DECISION IN THE CASE OF NESTLE INDIA LTD. V. DCIT (SUPRA), WHEREIN THE DELHI BENCHES OF THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE AND REJECTED THE PLEA OF THE ASSESSEE FOR CLAIMING DEPRECIATION @ 60% ON UPS. HO WEVER, THE DELHI BENCHES OF THE TRIBUNAL IN THE CASE OF NEPTUNE INFORMATION SOLUTIONS LTD. IN I.T.A. NO. 962/DEL/2006 VIDE ORDER DATED 21.04.2011 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE DECISION OF THE HON BLE DELHI HIGH COURT IN T HE CASE OF CIT V. BSES RAJDHANI POWERS LTD. VIDE ORDER DATED 31.08.2010 IN ITA NO. 1266/2010 AND ALSO BY FOLLOWING THE DECISION OF THE ITAT DELHI IN THE CASE OF EXPEDITORS INTERNATIONAL (INDIA) (P) LTD. V. CIT (2008) 118 TTJ 652 AND DIRECTED THE ASSESSING OFFICER TO ALLOW DEPRECIATION @ 60% TO UPS. THEREFORE, WE FIND NO FORCE IN THE ARGUMENTS OF THE LD. DR. 22. FURTHER, THE TRIBUNAL, IN THE CASE OF INDIAN OVERSEAS BANK V. DCIT IN I.T.A. NO. 1949/MDS/2012 DATED 18.06.2014, HAS ALSO ALLOWED DEPRECIATION ON UPS AT THE RATE OF 60%. ACCORDINGLY, IN VIEW OF THE ABOVE DECISIONS OF THE COORDINATE BENCHES OF TRIBUNAL, WE ARE OF THE FIRM VIEW THAT THE LD. CIT(APPEALS) HAS RIGHTLY DIRECTED THE ASSESSING OFFICER TO ALLOW DEPRECIATION ON UPS @ 60% AND WE FIND NO INFIR MITY IN THE ORDER PASSED BY THE LD. CIT(APPEALS) ON THIS ISSUE. ACCORDINGLY, I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 10 GROUND RAISED IN BOTH THE APPEALS OF THE REVENUE FOR THE ASSESSMENT YEAR 2005 - 06 AND 2007 - 08 IS DISMISSED. 14. BEFORE US, THE REVENUE COULD NOT CONTROVERT THE ABOVE FINDINGS OF THE TRIBUNAL OR FILED ANY HIGHER COURT DECISION HAVING MODIFIED OR REVERSED THE ABOVE DECISION OF THE TRIBUNAL. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT YEARS VIDE ITS COMMON ORDER DATED 30.11 .2015, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(APPEALS) ON THIS ISSUE AND DISMISS THE GROUND RAISED BY THE REVENUE FOR BOTH THE ASSESSMENT YEARS 2006 - 07 AND 2008 - 09. 15. THE SECOND COMMON GROUND RAISED IN BOTH THE APPEALS OF THE REVENUE RELATES TO DE LETION OF DISALLOWANCE MADE UNDER SECTION 36(1)(VIIA) OF THE ACT. SIMILAR GROUND HAS BEEN RAISED BY THE REVENUE IN ITS APPEAL IN I.T.A. NOS. 2124/MDS/2014, 2125/MDS/2014 & 2126/MDS/2014 FOR THE ASSESSMENT YEARS 2005 - 06, 2007 - 08 & 2010 - 11, WHEREIN THE TRIBU NAL HAS OBSERVED AS UNDER: 29. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. T HE LD. CIT(A), AFTER EXAMINING THE DETAILED SUBMISSIONS OF THE ASSESSEE AND ALSO BY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF LAKSHMI VILAS BANK LTD. V. ACIT (SUPRA), ALLOWED THE GROUND RAISED BY THE ASSESSEE BY OBSERVING AS UNDER: 4.3.3 I HAVE CONSIDERED THE ASSESSEE'S SUBMISSIONS CAREFULLY. AS PER THE PROVISIONS OF SEC.36(1)(VIIA), THE ASSESSEE, BEIN G A SCHEDULED BANK, IS ELIGIBLE FOR DEDUCTION OF NOT EXCEEDING 10% OF THE' AGGREGATE AVERAGE ADVANCES MADE BY THE RURAL BRANCHES OF THE BANKS COMPUTED IN THE PRESCRIBED MANNER.' THE STATUTES CLEARLY CONTAIN THAT THE DEDUCTION IS AVAILABLE ON THE AGGREGATE I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 11 AVERAGE ADVANCES MADE BY THE RURAL BRANCHES, AND NOT ON THE INCREMENTAL ADVANCES ONLY. THEREFORE, THE ASSESSING OFFICER'S INTERPRETATION, THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION ONLY ON THE INCREMENTAL AVERAGE AGGREGATE ADVANCES OF THE RURAL BRANCHES, IS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. FOR THIS PURPOSE, RELIANCE IS ALSO PLACED ON THE DECISION OF THE JURISDICTIONAL ITAT IN THE CASE OF LAKSHMI VILAS BANK IN ITA NO.551,552,553/MDS/2009 DATED 18 - 12 - 2009. THE RELEVANT PORTION OF THE DECISIO N, IS REPRODUCED AS UNDER: 4.1 ISSUE NO.1 - REGARDING COMPUTATION OF AGGREGATE AVERAGE ADVANCES, MADE BY THE RURAL BRANCHES: 4.1.1 WE HAVE HEARD THE LEARNED A.R. AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND CONSIDERED THE RELEVANT RECORDS. THE LE ARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE PROVISIONS OF SECTION 36(1)(VIIA) REFERS TO THE COMPUTATION IN THE PRESCRIBED MARINER. HE HAS THEN REFERRED RULE 6ABA OF INCOME TAX RULES, 1962 AND SUBMITTED THAT THIS ISSUE WAS CONSIDERED BY THE CO - ORD INATE BENCH OF THIS TRIBUNAL IN THE CASE OF DCIT VS. CITY UNION BANK LID, VIDE ORDER DATED 30.10.2009 IN I.T.A. NO.1485/MDS/2007. 4.1.2 ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT AS PER THE SECTION 5 OF THE INCOME TAX A CT, THE INCOME IS COMPUTED FOR THE PREVIOUS YEAR AND, THEREFORE, ALL DEDUCTIONS ARE TO BE ALLOWED IN RESPECT TO THE PREVIOUS YEAR ONLY. EACH ASSESSMENT YEAR IS A SEPARATE UNIT. HE HAS THUS SUBMITTED THAT IF THE OPENING BALANCE IS INCLUDED FOR THE PURPOSE O F COMPUTATION OF AGGREGATE AVERAGE ADVANCES OF THE RURAL BRANCHES FOR COMPUTATION OF DEDUCTION U/S. 36(1)(VIIA), IT WILL DE - HORS THE PROVISIONS OF SECTIONS 4 & 5 OF THE INCOME TAX ACT. HE HAS FURTHER SUBMITTED THAT THE ISSUE IN THE CASE OF CITY UNION BANK WAS NOT ON THE POINT OF CALCULATION OF AGGREGATE AVERAGE ADVANCES MADE BY THE RURAL BRANCHES, THEREFORE THE SAID DECISION IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 4.1.3 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RELEVANT RECORDS. AT THE OUT SET, WE FIND THAT THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN CASE OF CITY UNION I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 12 BANK LTD SUPRA CONSIDERED AND ADJUDICATED THIS ISSUE IN PARA 8 AS UNDER: WE HAVE DULY CONSIDER THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD. WE HAVE PERUSED RULE 6ABA OF THE INCOME TAX RULES, 1962. AS PER THE SAID RULE, THE AGGREGATE AVERAGE ADVANCES MADE BY THE RURAL BRANCHES HAVE TO BE COMPUTED BY TAKING THE AMOUNTS OF ADVANCES MADE BY EACH RURAL BRANCH AS OUTSTANDING AT THE END OF THE LAST DAY OF EACH MONTH COMPRISED IN THE PREVIOUS YEAR. THUS, IT IS CLEAR THAT THERE IS NO PROVISION TO CONSIDER ONLY THE ADVANCES MADE DURING THE YEAR UNDER CONSIDERATION. IT IS THE FINDING OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS FURNISHED THE WORKING AS PER RULE 6ABA. IT IS NOT IN D ISPUTE THAT THE WORKING IS AS PER RULE 6ABA BUT THE ASSESSING OFFICER SEEMS TO HAVE INTERPRETED THE PROVISION NOT WARRANTED BY LAW. THEREFORE, WE UPHOLD THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWING THE DEDUCTION TO THE ASSESSEE. 4.1.4 BY FOLLOWING THE PRINCIPLE OF CONSISTENCY, AS THE ISSUE HAS ALREADY BEEN DECIDED BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL, WE DECIDE THIS ISSUE ON MERITS IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 4.3.4 IN VIEW OF THE ABOVE DISCUSSION AND RESP ECTFULLY FOLLOWING THE DECISION OF THE JURISDICTIONAL ITAT IN THE CASE OF LAKSHMI VILAS BANK IN ITA NO.551,552, 553/MDS/2009 DATED 18 - 12 - 2009, I HOLD THAT THE ALLOWABLE DEDUCTION U / S.36(I)(VIIA) OF THE ACT IS @ 10% OF THE 'TOTAL AVERAGE AGGREGATE ADVANCES' MADE BY THE RURAL BRANCHES AND NOT ON THE INCREMENTAL AVERAGE AGGREGATE ADVANCES, AS CONTEMPLATED BY THE ASSESSING OFFICER. THE ASSESSEE'S APPEALS IN THIS REGARD ARE ALLOWED. 30. WE FIND THAT THE LD. CIT(APPEALS) HAS RIGHTLY FOLLOWED THE DECISION OF THE TRIBUNAL IN THE CASE OF LAKSHMI VILAS BANK (SUPRA) AND WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(APPEALS). THUS, THE GROUND RAISED BY THE REVENUE FOR BOTH THE ASSESSMENT YEARS ARE DISMISSED. 16. BEFORE US, THE CONTENTION OF THE LD. DR IS THAT THE DEPARTMENT HAS PREFERRED APPEALS BEFORE THE HON BLE HIGH COURT, MADRAS AGAINST THE ORDER I.T.A. NO S . 1264 & 1265 AND 1910 & 1911 /M/ 15 13 OF THE TRIBUNAL IN THE CASE OF LAKSHMI VILAS BANK IN I.T.A. NO. 551, 552, 553/MDS/2009 DATED 18.12.2009 AND IT CANNOT BE A GROUND TO TAKE A DIF FERENT VIEW AND MOREOVER, THE REVENUE COULD NOT FIL E ANY HIGHER COURT DECISION HAVING MODIFIED OR REVERSED THE ABOVE DECISION OF THE TRIBUNAL. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT YEARS VID E ITS COMMON ORDER DATED 30.11.2015, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(APPEALS) ON THIS ISSUE AND DISMISS THE GROUND RAISED BY THE REVENUE FOR BOTH THE ASSESSMENT YEARS 2006 - 07 AND 2008 - 09. ACCORDINGLY, BOTH THE APPEALS FILED BY THE REVENUE ARE DI SMISSED. 17 . IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2006 - 07 AND 2008 - 09 ARE PARTLY ALLOWED AND THE APPEALS OF THE REVENUE FOR THE ASSESSMENT YEARS 2006 - 07 & 2008 - 09 ARE DISMISSED . ORDER PRONOUNCED ON THE 22 ND JANUARY , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 22 . 0 1 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.