IBAHN INDIA P.LTD, NAVI MUMBAI V. DCIT 1(3), MUMBAI

ITA 4932/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4503 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 24-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V S JADHAVDR
• Keywords: Depreciation; Opportunity of being heard; Revenue expenditure
• Section: 92E; 32

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.4932/MUM/2015 ASSESSMENT YEAR: 2011-12 M/S IBAHN INDIA PVT. LTD. 1211, 12 TH FLOOR, RUPA SOLITAIRE, SECTOR-1, PLOT-1, MILLENNIUM BUSINESS PARK, MAHAPE, NAVI MUMBAI-400710 / VS. DCIT-1(3), 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO. AACCI0672F $ % & / ASSESSEE BY NONE $ % & / REVENUE BY SHRI V.S. JADHAV-DR / DATE OF HEARING 11/01/2016 & / DATE OF ORDER: 11/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 12/08/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, THE GROUND RAISED IN THIS APPEAL PERTAINS TO NOT AL LOWING CLAIMED DEPRECIATION AT THE RATE OF 60% AND HOLDIN G THAT THE ASSESSEE IS ELIGIBLE FOR DEPRECIATION AT THE RATE O F 15% ON ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 2 ROUTERS AND SWITCHES ETC. IGNORING THE DECISION IN DCIT VS DATACRAFT INDIA LTD. (2010) 40 SOT 295 (MUMBAI)(SB) AND THE CASE OF M/S UAE EXCHANGE AND FINANCIAL SERVICES LTD . (ITA NO.91/BANG/2014) ORDER DATED 10/10/2014 AND FURTHER DISALLOWANCE OF PAYMENT OF RS.4,88,052/- TOWARDS P URCHASE AND FREIGHT CHARGES AS PER REPORT IN FORM NO.3CEB U /S 92E OF THE ACT, BROADLY ON THE GROUND THAT SUCH GROUND WAS NOT PRESSED IN SPITE OF THE FACT THAT THE WRITTEN SUBMI SSIONS, WITH RESPECT TO THE ISSUE, WERE MADE VIDE LETTER DATED 28/07/2015. 2. DURING HEARING OF THIS APPEAL, NONE WAS PRESENT IN SPITE OF ISSUANCE OF REGISTERED/RPAD NOTICE TO THE ASSESSEE. THUS, I HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE, AND TEND TO DISPOSE OF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. SHRI V.S. JADHAV, LD. DR, WAS PRESENT FOR THE REVENUE, WHO DEFENDED THE CONCLUSIO N DRAWN IN THE IMPUGNED ORDER. 2.1. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DR A ND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , ALLOWING THE DEPRECIATION AT THE RATE OF 15% IN PLACE OF 60% , CLAIMED BY THE ASSESSEE, ON ROUTERS AND SWITCHES ARE CONCER NED, AS PER GROUND NO.3 OF THE ASSESSEE, RELIANCE HAS BEEN PLACED UPON THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS DATACRAFT INDIA LTD., WHICH HAS BEE N FOLLOWED BY THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF M/S UAE EXCHANGE AND FINANCIAL SERVICES LTD. (SUPRA). IT IS ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 3 NOTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SERVICE PROVIDER OF HSIA (HIGH SPEED INTERNET ACCESS), IPTV (INTERNET PROTOCOL TELEVISION), VOD (VIDEO ON DEMAND), I-MEDI A AND MOBILE STREAMING SERVICES FOR HOTEL CHAINS INCLUDIN G HILTON, MARRIOT, HAYAT, AND OBERAI ETC. TO CATER THE NEEDS OF THEIR CLIENTS. THE ASSESSEE CLAIMED DEPRECIATION OF RS.35 ,57,976/-, ON FIXED ASSETS, SHOWN AS MACHINERY AND PLANT. THE SE FIXED ASSETS INCLUDES INSTALLED HOTEL SYSTEMS, CONTAINING CERTAIN ACCESSORIES. WITHOUT THESE ACCESSORIES, AS PER THE ASSESSEE, INTERNET CONNECTION THROUGH COMPUTER CANNOT BE PROV IDED TO THE CLIENT. THE CRUX OF THE CLAIM IS THAT THESE AC CESSORIES FORM PART OF COMPUTERS, THEREFORE, ELIGIBLE FOR DEP RECIATION AT THE RATE OF 60%. HOWEVER, THE LD. ASSESSING OFFICE R WAS OF THE VIEW THAT THESE ACCESSORIES, INSTRUMENTS WERE NOT P ART OF COMPUTERS ACCORDINGLY HE ALLOWED DEPRECIATION AT TH E RATE OF 15%, THEREFORE, THE REMAINING CLAIMED/EXCESS DEPREC IATION OF RS.26,68,482/- WAS DISALLOWED. ON APPEAL, BEFORE TH E LD. COMMISSIONER OF INCOME TAX (APPEALS), THE DECISION TAKEN IN ASSESSMENT ORDER WAS AFFIRMED, AGAINST WHICH THE AS SESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 2.2. IT IS NOTED THAT THE LD. ASSESSING OFFICER HA S OBSERVED THAT THOUGH UPS, ROUTERS AND SWITCHES, ETC ARE CONNECTED TO THE COMPUTERS BUT CANNOT BE CONSIDERED TO BE INTEGRAL PART OF COMPUTERS, CONSEQUENTLY, RELYING U PON THE DECISION OF THE DELHI BENCH IN THE CASE OF NESTLE I NDIA LTD. VS DCIT (111 TTJ 498) DISALLOWED THE CLAIM OF THE ASSE SSEE. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADI NG TO ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 4 ADDITION MADE TO THE TOTAL INCOME, CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSER TIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF KEPT IN JUXT APOSITION AND ANALYZED, I HAVE CONSIDERED THE RIVAL SUBMISSIO NS AT LENGTH IN THE LIGHT OF MATERIAL PLACED BEFORE ME AN D PRECEDENTS RELIED UPON. THE CHIEF QUESTION WHICH FA LLS FOR MY ADJUDICATION/CONSIDERATION IS WHETHER ROUTERS AND S WITCHES ARE PART OF COMPUTER OR NOT FOR THE PURPOSES OF DEP RECIATION. SECTION 32(1) PROVIDES THAT WHERE ASSETS ARE OWNED WHOLLY OR PARTLY BY THE ASSESSEE AND USED FOR THE PURPOSE OF BUSINESS OR PROFESSION, DEDUCTION SHALL BE ALLOWED. CLAUSE ( II) OF SUB- SECTION (1) PROVIDES THAT IN CASE OF ANY BLOCK OF A SSET, THE DEDUCTION SHALL BE ALLOWED AT SUCH PERCENTAGE ON TH E WRITTEN DOWN VALUE THEREOF AS MAY BE PRESCRIBED. RULE 5(1) STIPULATES THAT DEPRECIATION IN RESPECT OF ANY BLOCK OF ASSET SHALL BE CALCULATED AT THE PERCENTAGES SPECIFIED IN THE SECO ND COLUMN OF THE TABLE IN THE APPENDIX I OF THESE RULES ON TH E WRITTEN DOWN VALUE OF SUCH BLOCK OF ASSET AS ARE USED FOR T HE PURPOSE OF BUSINESS OR PROFESSION OF THE ASSESSEE AT ANY TI ME DURING THE PREVIOUS YEAR. APPENDIX-I, AS APPLICABLE TO ASS ESSMENT YEAR 2002-03 UNDER CONSIDERATION, HAS DIFFERENT BLO CKS OF ASSETS. I AM CONCERNED WITH THE BLOCK OF ASSETS OF MACHINE AND PLANT OR WHETHER SUCH ITEMS ARE INTEGRAL PART O F COMPUTER OR NOT. GENERAL RATE OF DEPRECIATION PROVI DED IS 25 PER CENT AGAINST ITEM 1 IN RESPECT OF MACHINE AND P LANT OTHER THAN THOSE COVERED BY SPECIFIC SUB-ITEMS. SUB-ITEM (2B) IS 'COMPUTERS' AND THE RATE OF DEPRECIATION PRESCRIBED IS 60 PER ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 5 CENT. SUB-ITEM (5) IS 'COMPUTERS INCLUDING COMPUTER SOFTWARE' ON WHICH RATE OF DEPRECIATION HAS BEEN PR ESCRIBED AS 60 PER CENT. IT IS ONLY WITH EFFECT FROM ASSESSM ENT YEAR 2003-04 THAT COMPUTER SOFTWARE HAS ALSO BEEN INCLUD ED IN THE CATEGORY OF COMPUTERS FOR THE PURPOSES OF ALLOW ING DEPRECIATION AT THE HIGHER RATE OF 60 PER CENT. THU S, WHEREAS UP TO ASSESSMENT YEAR 2002-03 ONLY COMPUTERS WERE E LIGIBLE FOR DEPRECIATION AT THE RATE OF 60 PER CENT FROM AS SESSMENT YEAR 2003-04, THE BENEFIT OF SUCH ENHANCED DEPRECIA TION RATE HAS BEEN EXTENDED ALSO TO COMPUTER SOFTWARE. NOTE N O. 7 TO THE APPENDIX I, AS APPLICABLE FROM ASSESSMENT YEAR 2003-04, DEFINES 'COMPUTER SOFTWARE' TO MEAN ANY COMPUTER PR OGRAM RECORDED ON ANY DISC, TAPE, PERFORATED MEDIA OR OTH ER INFORMATION STORAGE DEVICE. NO DEFINITION OF 'COMPU TERS' HAS BEEN GIVEN IN THE APPENDIX, UNLIKE THAT OF COMPUTER SOFTWARE. IT IS NOBODY'S CASE THAT THE ROUTERS OR S WITCHES ARE COMPUTER SOFTWARE. THUS I SHALL RESTRICT MYSELF IN UNDERSTANDING THE MEANING OF THE EXPRESSION 'COMPUT ERS', IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2.3. SECTION 32, WHICH GRANTS DEPRECIATION ALLOWAN CE, DOES NOT DEFINE THE WORD 'COMPUTER'. IT IS AN ADMIT TED POSITION THAT THE WORD 'COMPUTER' HAS NOT BEEN DEFI NED IN THE INCOME-TAX ACT OR INCOME-TAX RULES. I FIND THAT THE TERM 'COMPUTER SYSTEM' HAS BEEN DEFINED IN EXPLANATION B ELOW SECTION 36(1)(XI) AS FOLLOWS : ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 6 '(A )'COMPUTER SYSTEM' MEANS A DEVICE OR COLLECTION OF DEVICES INCLUDING INPUT AND OUTPUT SUPPORT DEVICE AND EXCLU DING CALCULATORS WHICH ARE NOT PROGRAMMABLE AND CAPABLE OF BEING USED IN CONJUNCTION WITH EXTERNAL FILES, OR MORE OF WHICH CONTAIN COMPUTER PROGRAMMES, ELECTRONIC INSTRUCTION S, INPUT DATA AND OUTPUT DATA, THAT PERFORMS FUNCTIONS INCLU DING, BUT NOT LIMITED TO, LOGIC, ARITHMETIC, DATA STORAGE AND RETRIEVAL, COMMUNICATION AND CONTROL;' 2.4. AT THIS JUNCTURE IT WILL BE RELEVANT TO NOTE THAT CLAUSE (XI) OF SECTION 36(1) WAS INSERTED BY THE FI NANCE ACT, 1999 WITH EFFECT FROM 1-4-2000 WITH A VIEW TO ALLOW ING RELIEF IN OVERCOMING THE IMMEDIATE PROBLEM OF Y2K LIKELY T O COME UP AT THE CLOSE OF THE CALENDAR YEAR 1999. FROM THE BUDGET SPEECH OF THE FINANCE MINISTER IN 1999 (236 ITR (ST .) 26) IT CAN BE SEEN THAT THE GOVERNMENT ASSISTED BUSINESS S ECTOR IN OVERCOMING THE Y2K PROBLEM BY PROPOSING THAT THE EXPENDITURE INCURRED IN MAKING THE COMPUTER SYSTEM Y2K COMPLIANT, BE ALLOWED AS REVENUE EXPENDITURE. IT WA S WITH THIS INTENTION THAT CLAUSE (XI) OF SECTION 36(1) WA S INSERTED WHICH IS RELEVANT ONLY FOR FINANCIAL YEAR 1999-2000 PROVIDING FOR DEDUCTION OF ANY EXPENDITURE INCURRED BY THE AS SESSEE ON OR BEFORE THE 1-4-1999 BUT BEFORE THE FIRST DAY OF APRIL, 2000, WHOLLY AND EXCLUSIVELY IN RESPECT OF A NON-Y2K COMP LIANT COMPUTER SYSTEM, OWNED BY THE ASSESSEE AND USED FOR THE PURPOSES OF HIS BUSINESS OR PROFESSION. IT WAS IN T HIS CONTEXT THAT PHRASE 'COMPUTER SYSTEM' CAME TO BE DEFINED SO LELY FOR THE PURPOSE OF CLAUSE (XI) OF SECTION 36(1). ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 7 2.5. FROM THE ABOVE DISCUSSION IT IS SEEN THAT THE EXPLANATION (A) DEFINES 'COMPUTER SYSTEM' AND NOT ' COMPUTER' AND THAT TOO ONLY FOR THE PURPOSES OF CLAUSE (XI) O F SECTION 36(1), WHICH HAS FORCE ONLY FOR ONE YEAR. AS SUCH I AM NOT INCLINED TO ADOPT THIS DEFINITION OF 'COMPUTER SYST EM' FOR THE PURPOSES OF GRANTING DEPRECIATION UNDER SECTION 32 OF THE ACT ON 'COMPUTERS'. THE HON'BLE SUPREME COURT, VIDE ITS JUDGMENT DATED 7-5-2010, HAS HELD IN JT. CIT V. SAH ELI LEASING & INDUSTRIES LTD. [2010] 191 TAXMAN 165 THA T : 'A PARTICULAR WORD OCCURRING IN ONE SECTION OF THE ACT , HAVING A PARTICULAR OBJECT CANNOT CARRY THE SAME MEANING WHE N USED IN DIFFERENT SECTION OF THE SAME ACT, WHICH IS ENAC TED FOR DIFFERENT OBJECT. IN OTHER WORDS, ONE WORD OCCURRIN G IN DIFFERENT SECTIONS OF THE ACT CAN HAVE DIFFERENT ME ANING, IF THE OBJECT OF THE TWO SECTIONS ARE DIFFERENT AND WHEN B OTH OPERATE IN DIFFERENT FIELDS'. IN VIEW OF THE FACT THAT THE OBJECT OF SECTION 36(1)(XI) IS QUITE DISTINCT FROM THAT OF SECTION 32 , I AM OF THE CONSIDERED OPINION THAT THE DEFINITION OF THE TERM 'COMPUTER SYSTEM' GIVEN IN THE EXPLANATION TO SECTION 36(1)(X I) CANNOT BE APPLIED AS SUCH (FOR GIVING MEANING TO 'COMPUTER') IN THE CONTEXT OF SECTION 32. 2.6. IN SOME OF THE CASES DECIDED BY THE TRIBUNAL, RELIANCE HAS BEEN PLACED ON THE DEFINITION OF 'COMP UTER' GIVEN BY THE INFORMATION TECHNOLOGY ACT, 2000, SECTION 2( I), WHICH IS AS UNDER : ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 8 '(I)' COMPUTER' MEANS ANY ELECTRONIC, MAGNETIC, OPTICAL O R OTHER HIGH SPEED DATA PROCESSING DEVICE OR SYSTEM WHICH P ERFORMS LOGICAL, ARITHMETIC AND MEMORY FUNCTIONS BY MANIPUL ATIONS OF ELECTRONIC, MAGNETIC OR OPTICAL IMPULSES, AND INCLU DES ALL INPUT, OUTPUT, PROCESSING, STORAGE, COMPUTER SOFTWARE OR COMMUNICATION FACILITIES WHICH ARE CONNECTED OR REL ATED TO THE COMPUTER IN A COMPUTER SYSTEM OR COMPUTER NETWORK.' 2.7. BEFORE, I GO ON TO APPLY THIS DEFINITION IN T HE CONTEXT OF SECTION 32, THE SCHEME OF THE INFORMATIO N TECHNOLOGY ACT, 2000, NEEDS TO BE EXAMINED. ITS PRE AMBLE INDICATES THAT IT IS AN ACT TO PROVIDE LEGAL RECOGN ITION FOR TRANSACTIONS CARRIED OUT BY MEANS OF ELECTRONIC DAT A INTERCHANGE AND OTHER MEANS OF ELECTRONIC COMMUNICA TION, COMMONLY REFERRED TO AS 'ELECTRONIC COMMERCE', WHIC H INVOLVES THE USE OF ALTERNATIVES TO PAPER-BASED MET HODS OF COMMUNICATION AND STORAGE OF INFORMATION, TO FACILI TATE ELECTRONIC FILING OF DOCUMENTS WITH THE GOVERNMENT AGENCIES AND FURTHER TO AMEND THE INDIAN PENAL CODE, THE IND IAN EVIDENCE ACT, 1872, THE BANKERS' BOOKS EVIDENCE ACT , 1891 AND THE RESERVE BANK OF INDIA ACT, 1934 AND FOR MAT TERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE STAT EMENT OF OBJECTS AND REASONS OF THIS ACT DIVULGES THAT NEW COMMUNICATION SYSTEMS AND DIGITAL TECHNOLOGY HAVE M ADE DRAMATIC CHANGES IN THE WAY WE LIVE. A REVOLUTION I S OCCURRING IN THE WAY PEOPLE TRANSACT BUSINESS. BUSINESS AND CONSUMERS ARE INCREASINGLY USING COMPUTERS TO CREAT E, TRANSMIT AND STORE INFORMATION IN THE ELECTRONIC FO RM INSTEAD ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 9 OF TRADITIONAL PAPER DOCUMENTS. INFORMATION STORED IN ELECTRONIC FORM HAS MANY ADVANTAGES. 2.8. HAVING SEEN THE OBJECT OF THE INFORMATION TECHNOLOGY ACT, 2000, THE QUESTION WHICH ARISES FOR CONSIDERATION IS THAT CAN I IMPORT THE DEFINITION O F 'COMPUTER', AS GIVEN IN IT, IN THE INCOME-TAX ACT, 1961 FOR THE PURPOSES OF SECTION 32? IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN CIT V. VENKATESWARA HATCHERIES (P.) LTD. [1999] 237 ITR 174 THAT THE MEANING ASSIGNED TO A PARTICULAR WORD IN A PARTICULAR STATUTE CANNOT BE IMPORTED TO A WORD USED IN A DIFF ERENT STATUTE. SIMILAR VIEW HAS BEEN EXPRESSED BY THE HON 'BLE RAJASTHAN HIGH COURT IN ARIHANT TILES & MARBLES (P. ) LTD. V. ITO [2007] 295 ITR 148HOLDING THAT THE INTERPRETATI ON OF ANY EXPRESSION USED IN THE CONTEXT OF ONE STATUTE IS NO T TO BE AUTOMATICALLY IMPORTED WHILE INTERPRETING SIMILAR E XPRESSION IN ANOTHER STATUTE. THIS JUDGMENT HAS BEEN APPROVED BY THE HON'BLE SUPREME COURT IN ITO V. ARIHANT TILES & MAR BLES (P.) LTD. [2010] 320 ITR 79. 2.9. FROM THE ABOVE, IT IS EVIDENT THAT THE RATION ALE BEHIND THE INFORMATION TECHNOLOGY ACT, 2000 IS QUIT E DISTINCT FROM THAT OF THE INCOME-TAX ACT, AS CAN BE SEEN FRO M ITS PREAMBLE, WHICH IS 'AN ACT TO CONSOLIDATE AND AMEND THE LAW RELATING TO INCOME-TAX AND SUPER TAX'. THUS IT IS P ALPABLE THAT BOTH THESE ACTS ARE NOT IN PARI MATERIA. THERE IS S IGNIFICANT DIFFERENCE IN THE SCOPE, PURPOSE AND SUBSTANCE OF T HESE TWO STATUTES. EX CONSEQUENTI THE DEFINITION OF 'COMPUTE R' AS GIVEN ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 10 IN THE INFORMATION TECHNOLOGY ACT, 2000, CANNOT BE APPLIED IN THE CONTEXT OF SECTION 32 OF THE INCOME-TAX ACT. HO WEVER, THOUGH THE LEARNED AUTHORISED REPRESENTATIVE ALSO A GREED THAT THE DEFINITION IN THE INFORMATION TECHNOLOGY A CT CANNOT BE IMPORTED, I AM OF THE OPINION THAT A PERUSAL OF THE OBJECTS OF THAT ENACTMENT AND A PERUSAL OF THE DEFINITION O F THE TERM 'COMPUTER' GIVEN IN THE INFORMATION TECHNOLOGY ACT, 2000 ARE NOTHING BUT COMMON PARLANCE DEFINITION WHICH CAN BE OF SOME USE IN THE DEFINITION OF A COMPUTER. THUS IN M Y CONSIDERED VIEW, AID CAN BE TAKEN OF THE DEFINITION OF THE TERM 'COMPUTER' GIVEN IN INFORMATION TECHNOLOGY ACT, 200 0. 2.10. AS PER THE GENERAL CLAUSES ACT, 1897, IF A PARTICULAR WORD IS NOT DEFINED IN THE CENTRAL STATU TE THEN MEANING GIVEN TO SUCH EXPRESSION UNDER GENERAL CLAU SES ACT MAY BE CONSIDERED FOR GUIDANCE AND ADOPTION IN THE FORMER ENACTMENT. HOWEVER, IT IS NOTICED THAT THE WORD 'CO MPUTER' HAS NOT BEEN DEFINED THEREIN. UNDER SUCH CIRCUMSTAN CES MEANING OF AN EXPRESSION HAS TO BE UNDERSTOOD BY AP PLYING THE PRINCIPLES OF STATUTORY INTERPRETATION I.E., IN THIS CONTEXT I HAVE TO GIVE A MEANING TO THE EXPRESSION 'COMPUTER' NOT MERELY GOING BY THE DICTIONARY MEANING BUT BY APPLYI NG COMMON PARLANCE AND COMMERCIAL PARLANCE TESTS AS WE LL AS BY ANALYSING THE INTENDMENT OF PROVIDING FOR HIGHER RATE OF DEPRECIATION. I MAY REFER TO SEVERAL CASE LAW TO AN ALYSE AS TO WHICH FORMULA WOULD APTLY SUIT THE SITUATION IN THE GIVEN CASE. THE RATIO LAID DOWN IN FOLLOWING CASES FURTH ER THROW LIGHT. ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 11 (I)ITO V. SAMIRAN MAJUMDAR [2006] 98 ITD 119(KOL.); (II)CONTAINER CORPN. OF INDIA LTD. V. ASSTT. CIT [2 009] 30 SOT 284(DELHI); (III)ASSTT. CIT V. CINCOM SYSTEM INDIA (P.) LTD. [I T APPEAL NO. 1534 DELHI OF 2008, DATED 13-4-2009]; (IV)ITO V. NIRMAL DATACOM LEASING (P.) LTD. [IT APP EAL NO. 9392 (MUM.) OF 2004, DATED 3-5-2007]; (V)ITO V. KEY NOTE CAPITAL (P.) LTD. [IT APPEAL NO. 7049 (MUM.) OF 2004, DATED 22-11-2007]; (VI)EXPEDITORS INTERNATIONAL (INDIA) (P.) LTD. V. A DDL. CIT [IT APPEAL NO. 4364 (DELHI) OF 2006, DATED 19-7-2007]; (VII)POONAWALA FINVEST & AGRO (P.) LTD. V. ASSTT. C IT [2008] 118 TTJ (PUNE) 68. 2.11. IN INDIAN HOTELS CO. LTD. V. ITO [2000] 245 ITR 538(SC), THE ISSUE WAS ABOUT THE GRANTING OF DEDUCT ION UNDER SECTION 80J TO AN INDUSTRIAL UNDERTAKING. IT WAS NO TICED THAT SECTION 80J PROVIDES FOR GRANT OF DEDUCTION TO AN A SSESSEE WHO DERIVES INCOME FROM AN INDUSTRIAL UNDERTAKING O R A SHIP OR THE BUSINESS OF A HOTEL TO WHICH THE SECTION APP LIES AND THE SECTION APPLIES TO ANY INDUSTRIAL UNDERTAKING, ANY SHIP OR BUSINESS OF ANY HOTEL IF THE CONDITIONS PRESCRIBED UNDER SUB- SECTIONS (4), (5) AND (6) RESPECTIVELY, ARE SATISFI ED. IT WAS NOTICED THAT THE WORDS 'INDUSTRIAL UNDERTAKING' HAV E NOT BEEN DEFINED IN THE ACT. IN THIS BACKGROUND OF FACTS, TH E HON'BLE COURT POSED THE QUESTION TO ITSELF AS TO WHETHER TH E ASSESSEE ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 12 HAS DERIVED PROFITS AND GAINS FROM AN 'INDUSTRIAL UNDERTAKING' OR FROM THE 'BUSINESS OF A HOTEL'. AFT ER DISCUSSING THE ISSUE THREADBARE, IT WAS HELD THAT : INDUSTRIAL UNDERTAKING IS NOT GIVEN ANY MEANING UNDER THE ACT, HENCE IT IS TO BE UNDERSTOOD AS PER COMMON PARLANCE LANGUAGE . TAKING INTO THIS ACCOUNT, APPARENTLY, THE BUSINESS OF THE ASSESSEE IS THAT OF A HOTEL, WHICH IS A TRADING ACT IVITY AND NOT THAT OF AN INDUSTRIAL UNDERTAKING.' RESULTANTLY THE BENEFIT OF DEDUCTION WAS DENIED. 2.12. IN ASPINWALL & CO. LTD. V. CIT [2001] 251 IT R 323(SC), THEIR LORDSHIPS WERE CONCERNED WITH THE QU ESTION OF GRANTING INVESTMENT ALLOWANCE, FOR WHICH ONE OF THE PREREQUISITE CONDITIONS AS PER SECTION 32A WAS THAT THE INDUSTRIAL UNDERTAKING SHOULD BE ENGAGED INTER ALIA IN THE MANUFACTURING. IT WAS NOTICED THAT THE WORD 'MANUFA CTURE' WAS NOT DEFINED IN THE INCOME-TAX ACT. IN SUCH CIRC UMSTANCES IT WAS HELD THAT : 'IN THE ABSENCE OF A DEFINITION, THE WORD 'MANUFACTURE' HAS TO BE GIVEN A MEANING AS IS UNDER STOOD IN COMMON PARLANCE. IT IS TO BE UNDERSTOOD AS MEANING THE PRODUCTION OF ARTICLES FOR USE FROM RAW OR PREPARED MATERIALS BY GIVING SUCH MATERIALS NEW FORMS, QUALITIES OR CO MBINATIONS WHETHER BY HAND LABOUR OR MACHINES. IF THE CHANGE M ADE IN THE ARTICLE RESULTS IN A NEW AND DIFFERENT ARTICLE THEN IT WOULD AMOUNT TO MANUFACTURING ACTIVITY.' 2.13. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE SUPREME COURT IN MANGULU SAHU RAMAHARI SAHU V. STAT E ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 13 TAX OFFICER AIR 1974 SC 390 BY HOLDING THAT IN THE ABSENCE OF SPECIFIC DEFINITION, THE MEANING AS UNDERSTOOD I N COMMON PARLANCE HAS TO BE ADOPTED. FROM THE LEGAL POSITION AS ENUNCIATED IN THE ABOVE JUDGMENTS, IT IS CRYSTAL CL EAR THAT WHERE A WORD HAS NOT BEEN DEFINED IN THE ACT, IT IS DESIRABLE TO COMPREHEND ITS MEANING AS IS UNDERSTOOD IN ITS N ATURAL SENSE. 2.14. A COMPUTER, IN COMMON SENSE AND AS POPULARLY UNDERSTOOD, REFERS TO ANY ELECTRONIC OR OTHER HIGH SPEED DATA PROCESSING DEVICE WHICH PERFORMS 'LOGICAL, ARITHMET IC AND MEMORY FUNCTIONS ON DATA' (HEREINAFTER CALLED THE ' COMPUTER FUNCTIONS') AND INCLUDES ALL INPUT AND OUTPUT DEVIC ES WHICH ARE CONNECTED TO OR RELATED TO IT. PARA 24 OF THE A SSESSMENT ORDER INDICATES THAT THE ASSESSING OFFICER WAS ALSO OF THE OPINION THAT THE MEANING OF THE WORD 'COMPUTER', AS UNDERSTOOD IN THE COMMON PARLANCE IS 'AN ELECTRONIC DEVICE FOR STORING AND PROCESSING DATA AND MAKING CALCULAT ING AND CONTROLLING MACHINE WHICH ALSO INCLUDES INPUT DEVIC E LIKE KEYBOARDS OR MOUSE AND THE OUTPUT DEVICES LIKE THE PRINTER OR MONITOR.' 2.15. I WOULD LIKE TO CLARIFY HERE THAT THE MEANIN G OF COMPUTER CANNOT BE EXTENDED TO A DEVICE OR SET OF D EVICES WHICH ARE MEANT TO PERFORM SOME INDEPENDENT FUNCTIO N(S) EVEN THOUGH IN ACHIEVING SUCH DESIRED INDEPENDENT FUNCTION(S), SOME SORT OF 'COMPUTER FUNCTIONS' ARE ALSO INVOLVED. TODAY IS AN ELECTRONIC AGE. MOST OF THE P RODUCTS ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 14 USED BY US INVOLVE SOME SORT OF MECHANISM, WHICH MA Y BE LOOSELY CALLED AS COMPUTER FUNCTIONS. TAKE THE INST ANCE OF TELEVISION SET, MOBILE PHONE AND CARS ETC., ALL OF WHICH, INTER ALIA, INVOLVE ONE FORM OR THE OTHER OF COMPUTER FUN CTIONS. SIMPLY BECAUSE SOME 'COMPUTER FUNCTIONS' ARE INVOLV ED IN THESE EQUIPMENTS OR THE ASSISTANCE OF COMPUTERS IS TAKEN AS SUCH AT ONE STAGE OR THE OTHER IN THEIR OPERATION, THESE WILL NOT BECOME COMPUTER. THE MEANING OF COMPUTER CANNOT BE EXTENDED TO ANOTHER MACHINE THAT OPERATES WITH THE ASSISTANCE OF COMPUTER. CONVERSELY AN ITEM, WHICH I S AN INTEGRAL PART OF THE COMPUTER, CANNOT BE DEFINED BY ITS OPERATIONS WHICH IT IS CAPABLE OF PERFORMING, E.G. : A WIRE AND PLUG ARE ELECTRICAL ITEMS IN GENERAL BUT COST OF A WIRE, INTEGRALLY CONNECTED TO TELEVISION, MAY BE ADDED TO COST OF TV WHEREAS A WIRE AND PLUG ATTACHED TO THE COMPUTER SY STEM HAS TO BE TREATED AS COMPUTER. 2.16. THUS IN ORDER TO DETERMINE WHETHER A PARTICU LAR MACHINE CAN BE CLASSIFIED AS A COMPUTER OR NOT, THE PREDOMINANT FUNCTION, USAGE AND COMMON PARLANCE UNDERSTANDING, WOULD HAVE TO BE TAKEN INTO ACCOUNT. TO ANALYSE FURTHER, I TAKE THE CASE OF A TELEVISION, T HE PRINCIPAL TASK OF WHICH IS TO DELIVER VISUALS ACCOMPANIED WIT H AUDIO. THE SIGNALS ARE RECEIVED THROUGH THE RELEVANT NETWO RKS SUCH AS DISH TV, TATA SKY ETC. BUT TV DOES NOT BECOME CO MPUTER FOR THE REASON THAT ITS PRINCIPAL FUNCTION CANNOT B E DONE ONLY WITH THE AID OF 'COMPUTER FUNCTIONS' NOTWITHSTANDIN G THE FACT THAT IN THE ENTIRE PROCESS OF NETWORKING OR RECEIVI NG THE ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 15 OUTPUT FROM DIFFERENT CHANNELS AND MAKING IT AVAILA BLE TO THE VIEWERS, SOME SORT OF COMPUTER FUNCTIONS ARE NECESS ARILY INVOLVED. SIMILARLY TAKE THE CASE OF MOBILE PHONE. ITS PRINCIPAL TASK IS TO RECEIVE AND SEND CALLS. IT IS NOT A STAND- ALONE APPARATUS WHICH CAN OPERATE WITHOUT THE RELEV ANT NETWORK, SUCH AS AIRTEL, BSNL, RELIANCE. IT, THEREF ORE, FOLLOWS THAT ANY MACHINE OR EQUIPMENT CANNOT BE DESCRIBED A S COMPUTER, IF ITS PRINCIPAL OUTPUT OR FUNCTION IS TH E RESULT OF SOME SORT OF 'COMPUTER FUNCTIONS' IN CONJUNCTION WI TH SOME NON-COMPUTER FUNCTIONS. IN ORDER TO BE CALLED AS CO MPUTER, IT IS SINE QUA NON THAT THE PRINCIPAL OUTPUT/OBJECT/FU NCTION OF SUCH MACHINE SHOULD BE ACHIEVABLE ONLY THROUGH 'COM PUTER FUNCTIONS'. 2.17. HAVING ANALYSED THE MEANING OF 'COMPUTER' IN COMMON PARLANCE, I PROCEED TO ASCERTAIN THE CONCEPT , MEANING AND FUNCTIONS OF 'ROUTER'. AGAIN I FIND THA T THE TERM 'ROUTER' HAS NOT BEEN DEFINED IN THE INCOME-TAX ACT , 1961. ACCORDINGLY IT ALSO NEEDS TO BE ASSIGNED THE MEANIN G AS IT IS UNDERSTOOD IN COMMON PARLANCE. WHEN A PACKET OF DAT A ARRIVES AT A ROUTER, ITS HEADER INFORMATION IS SCRU TINIZED BY THE ROUTER. BASED ON THE DESTINATION AND SOURCE IP ADDRESSES OF THE PACKET, THE ROUTER DECIDES WHICH NEIGHBOUR I T WILL FORWARD IT TO. 2.18. SO FAR AS, USE OF ROUTERS/SWITCHES IS CONCER NED, THE ROUTERS ARE CRUCIAL DEVICE THAT LET THE MESSAGES FL OW FROM ONE COMPUTER TO ANOTHER. ROUTER HAS TWO SEPARATE BUT RE LATED ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 16 JOBS, VIZ., (A) TO ENSURE THAT THE INFORMATION DOES NOT GO WHERE IT IS NOT NEEDED AND (B) IT MAKES SURE THAT THE INF ORMATION DOES MAKE IT TO THE INTENDED DESTINATION. 2.19. A ROUTER IS A NETWORKING DEVICE WHOSE SOFTWA RE AND HARDWARE ARE CUSTOMIZED TO THE TASKS OF ROUTING AND FORWARDING INFORMATION. A ROUTER HAS TWO OR MORE NE TWORK INTERFACES, WHICH MAY BE TO DIFFERENT PHYSICAL TYPE S OF NETWORK (SUCH AS COPPER CABLES, FIBRE OR WIRELESS) OR DIFFERENT NETWORK STANDARDS. EACH NETWORK INTERFACE IS A SMAL L COMPUTER SPECIALIZED TO CONVERT ELECTRIC SIGNALS FR OM ONE FORM TO ANOTHER. ROUTERS CONNECT TWO OR MORE LOGICAL SUB NETS, WHICH DO NOT SHARE A COMMON NETWORK ADDRESS. THE SU BNETS IN THE ROUTER DO NOT NECESSARILY MAP ONE-TO-ONE TO THE PHYSICAL INTERFACES OF THE ROUTER. THE TERM 'LAYER 3 SWITCHING' IS USED OFTEN INTERCHANGEABLY WITH THE TERM 'ROUTIN G'. THE TERM SWITCHING IS GENERALLY USED TO REFER TO DATA F ORWARDING BETWEEN TWO NETWORK DEVICES THAT SHARE A COMMON NET WORK ADDRESS. 2.20. IN SIMPLE WORDS, A ROUTER MEANS A DEVICE THA T ROUTES DATA FROM ONE COMPUTER TO ANOTHER OR FROM ON E NETWORK TO ANOTHER. ROUTERS PROVIDE CONNECTIVITY IN SIDE ENTERPRISES, BETWEEN ENTERPRISES AND THE INTERNET, AND INSIDE INTERNET PROVIDERS. FROM THE ABOVE DISCUSSION IT TR ANSPIRES THAT THE FUNCTION OF A ROUTER IS TO RECEIVE THE DAT A FROM ONE COMPUTER AND MAKE IT AVAILABLE TO ANOTHER COMPUTER FOR VIEWING OR FURTHER PROCESSING. APART FROM FACILITAT ING THE FLOW ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 17 OF DATA BETWEEN TWO COMPUTERS, THE ROUTERS ALSO HEL P IN THE TRANSFER OF DATA FROM NETWORK TO COMPUTER. THUS THE ESSENTIAL FUNCTION OF THE ROUTER IN A COMMERCIAL ORGANIZATION IS TO FACILITATE THE FLOW OF DATA FROM ONE COMPUTER TO AN OTHER FOR ITS PROCESSING OR STORAGE. SWITCHES ARE SHORTER VERSION OF ROUTERS, WHICH PERFORM SIMILAR FUNCTIONS AS THAT OF ROUTERS BUT WITHIN A LIMITED SPHERE. 2.21. ON FUNCTIONING OF A 'ROUTER' I FIND THAT THE RE IS NO DISPUTE ON THE FACT THAT A 'ROUTER' DOES NOT PERFOR M ANY LOGICAL, ARITHMETIC AND INTERMEDIARY FUNCTIONS ON D ATA NOR IT MANIPULATES OR PROCESSES DATA, THE WAY A COMPUTER W OULD DO. A 'ROUTER' DOES NOT HAVE A 'CPU'. IT ONLY ENABLES TRANSMISSION OF DATA AND DATA PACKAGES, IN A SOPHIS TICATED MANNER, TO INTENDED PLACES. A DATA CABLE ALSO CARRI ES DATA FROM ONE PLACE TO ANOTHER, BUT IT DOES NOT SELECTIV ELY INTERCHANGE PACKETS OF DATA BETWEEN PLACES. THE DIF FERENCE BETWEEN A 'CABLE' AND A 'ROUTER' IS THAT IN A 'ROUT ER' DATA IS 'ROUTED' AS PER THE SPECIFICATION. THUS A 'ROUTER' MAY NOT BY ITSELF BE CALLED A COMPUTER. 2.22. NOW, I HAVE TO CONSIDER WHETHER A 'ROUTER' C AN BE CONSIDERED AS 'COMPUTER HARDWARE' OR A 'COMPUTER COMPONENT'. COMPUTER HARDWARE REFERS TO THE PHYSICA L PARTS OF A COMPUTER AND RELATED DEVICES. INTERNAL HARDWAR E DEVICES INCLUDE MOTHERBOARDS, HARD DRIVES, AND RAM. EXTERNA L HARDWARE DEVICES INCLUDE MONITORS, KEYBOARDS, MOUSE , PRINTERS, AND SCANNERS. THE INTERNAL HARDWARE PARTS OF A ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 18 COMPUTER ARE OFTEN REFERRED TO AS 'COMPONENTS', WHI LE EXTERNAL HARDWARE DEVICES ARE USUALLY CALLED 'PERIPHERALS'. TOGETHER, THEY ALL FALL UNDER THE CATEGORY OF COMPUTER HARDWA RE. 'SOFTWARE', ON THE OTHER HAND, CONSIST OF THE PROGR AMS AND APPLICATIONS THAT RUN ON COMPUTERS. BECAUSE SOFTWAR E RUNS ON COMPUTER HARDWARE, SOFTWARE PROGRAMS OFTEN HAVE 'SYSTEM REQUIREMENTS', THAT LIST THE MINIMUM HARDWARE REQUI RED FOR THE SOFTWARE TO RUN. 2.23. IN SHORT, 'ROUTER' IS A HARDWARE DEVICE THAT ROUTES DATA (HENCE THE NAME) FROM A LOCAL AREA NETWORK (LA N) TO ANOTHER NETWORK CONNECTION. A ROUTER ACTS LIKE A CO IN SORTING MACHINE, ALLOWING ONLY AUTHORIZED MACHINES TO CONNE CT TO OTHER COMPUTER SYSTEMS. MOST ROUTERS ALSO KEEP LOG FILES ABOUT THE LOCAL NETWORK ACTIVITY. NOW THE QUESTION IS WHETHER THIS 'MACHINE' CAN BE USED INDEPENDENT OF COMPUTER. IF YES, THEN IT CANNOT BE CALLED 'COMPUTER HARDWARE' IN ALL CIRCUMSTANCES. 2.24. WHEN 'COMPUTER HARDWARE', IS USED AS A COMPONENT OF THE COMPUTER, IT BECOMES PART AND PARC EL OF THE COMPUTER, AS IN THE CASE OF OPERATING SOFTWARE IN T HE COMPUTER. IN SUCH A SITUATION, HARDWARE IN QUESTION CAN BE CONSIDERED AS A PART OF A COMPUTER AND HENCE A 'COM PUTER'. PER CONTRA, WHEN THE MACHINE IS NOT USED AS A NECES SARY ASSESSORY OR IN COMBINATION WITH A COMPUTER, IT CAN NOT BE CALLED A 'COMPUTER COMPONENT'. ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 19 COMING TO THE ROUTERS, IT IS SEEN THAT THESE CAN AL SO BE USED WITH A TELEVISION AND IN SUCH USE, NO COMPUTER IS R EQUIRED. THESE ARE ALSO CALLED T.V. ROUTERS. SIMILARLY, 'INT ERNET SERVICE PROVIDERS', GIVE CONNECTIVITY, BY INSTALLING A ROUT ER IN THE PREMISES OF THE PERSONS/INSTITUTIONS AVAILING THE I NTERNET CONNECTION. GIVING ANOTHER EXAMPLE, A COMPUTER SOFT WARE CAN BE USED IN MANY DEVICES INCLUDING WASHING MACHINE, TELEVISIONS, TELEPHONE EQUIPMENT ETC. WHEN SUCH SOF TWARE IS USED IN THOSE DEVICES, IT INTEGRATES WITH THAT PART ICULAR DEVICES. THE PREDOMINANT FUNCTION OF THE DEVICE DET ERMINES ITS CLASSIFICATION. ONLY IF THE COMPUTER SOFTWARE, RESIDES IN A COMPUTER, THEN IT BECOME A PART AND PARCEL OF A COM PUTER AND, AS LONG AS IT IS AS INTEGRAL PART OF A COMPUTE R, IT IS CLASSIFIED AS A 'COMPUTER'. 2.25. NO DOUBT THE FUNCTION OF THE COMPUTER, AS ON E COMPOSITE UNIT, IS TO PERFORM LOGICAL, ARITHMETICAL OR MEMORY FUNCTIONS ETC., BUT IT IS NOT ONLY THE EQUIPMENT WH ICH PERFORMS SUCH FUNCTIONS THAT CAN BE CALLED AS COMPU TER; ALL THE INPUT AND OUTPUT DEVICES, AS DISCUSSED ABOVE, W HICH SUPPORT IN THE RECEIPT OF INPUT AND OUTFLOW OF THE OUTPUT ARE ALSO PART OF COMPUTER. CPU ALONE, IN MY OPINION, CA NNOT BE CONSIDERED AS SYNONYMOUS TO THE EXPRESSION 'COMPUTE R'. THE FUNCTION OF CPU IS AKIN TO THE BRAIN PLAYING A PIVO TAL ROLE IN THE CONDUCT OF THE BODY. AS I DO NOT CALL THE BRAIN ALONE AS THE BODY, SIMILARLY THE CPU ALONE CANNOT BE DESCRIB ED AS COMPUTER. THUS THE COMPUTER HAS TO NECESSARILY INCL UDE THE INPUT AND OUTPUT DEVICES WITHIN ITS SCOPE, SUBJECT TO THEIR ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 20 EXCLUSIVE USER WITH THE COMPUTER, AS DISCUSSED ABOV E. IF I CONSTRUCT THE DEFINITION OF COMPUTER ONLY TO PROCES SING UNIT, AS HAS BEEN HELD IN THE CASE OF ROUTERMANIA TECHNOL OGIES (P.) LTD. (SUPRA), THEN EVEN THE KEYBOARD AND MOUSE ETC. , WILL NOT QUALIFY TO BE CALLED AS COMPUTER BECAUSE THESE EQUI PMENTS ALSO DO NOT PERFORM LOGICAL, ARITHMETICAL OR MEMORY FUNCTIONS. IN THE LIGHT OF THE MEANING OF 'COMPUTER' DISCUSSED IN EARLIER PARAS, I AM INCLINED TO AGREE WITH THE VIEW TAKEN B Y THE KOLKATA BENCH IN SAMIRAN MAJUMDAR'S CASE (SUPRA). I , THEREFORE, HOLD THAT THE ROUTERS AND SWITCHES IN TH E CIRCUMSTANCES OF THE CASE, ARE INTEGRAL PART OF COM PUTER, ENTITLED TO DEPRECIATION AT THE RATE OF 60 PER CENT . THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED. 3. SO FAR AS, GROUND NO.4 WITH RESPECT TO NON- PRESSING THE GROUND, AS MENTIONED BY THE LD. COMMIS SIONER OF INCOME TAX (APPEALS), IS CONCERNED, THE STAND OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS THAT WRITTE N SUBMISSIONS WERE FILED BEFORE THE LD. FIRST APPELLA TE AUTHORITY VIDE LETTER DATED 28/07/2015 AND THE GROUND WAS PRE SSED, THEREFORE, THIS GROUND OF THE ASSESSEE IS REMANDED BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APP EALS) TO ANALYZE THE FACTUAL MATRIX AND DECIDE AFRESH IN ACC ORDANCE WITH LAW. NEEDLESS TO MENTION HERE, THAT ASSESSEE B E GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM, THUS, TH IS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.4932/MUM/2015 M/S IBAHN INDIA PVT. LTD. 21 FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 11/01/2016. SD/- (JOGINDER SINGH) !' / JUDICIAL MEMBER MUMBAI; DATED : 11/01/2016 F{X~{T? P.S / ! &($)!*+,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. )) * ( '#$ ) / THE CIT, MUMBAI. 4. )) * / CIT(A)- , MUMBAI 5. -./' , )'#$' 1 , / DR, ITAT, MUMBAI 6. /23$ / GUARD FILE. &( / BY ORDER, (-#' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI