ASST. C.I.T. CENTRAL CIRCLE-13, MUMBAI V. M/S. EXCEL INDIA (P) LTD., MUMBAI

ITA 6452/MUM/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1611 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2001-2002
• Appeal Filed On: 06-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS VANDANA SAGAR
• Assessee Lawyers: V D KOTHARI
• Keywords: Capital asset; Depreciation; Revenue expenditure; Capital expenditure; TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH: MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI V D RAO, JUDICIAL MEMBER ITA NO 6452/MUM/2008 (ASSESSMENT YEAR: 2001-02) ASSTT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -13 , 11 TH FLOOR, OLD CGO BLDG, ANNEXE, M K ROAD, MUMBAI -400 020 VS EXCEL INDIA (P) LTD , 8 TH FLOOR, LELLA GALLERIA, ANDHERI-KURLA ROAD, ANDHERI (E), MUMBAI PAN: AAACM 6824 H APPELLANT RESPONDENT APPELLANT BY: MRS VANDANA SAGAR RESPONDENT BY: SHRI V D KOTHARI ORDER PER PRAMOD KUMAR 1. BY WAY OF THIS APPEAL, THE AO HAS CALLED INTO QU ESTION THE CORRECTNESS OF CIT (A)S ORDER DATED 19 TH AUGUST 2008 FOR THE ASSESSMENT YEAR 2001-02 ON THE FOLLOWING GROUNDS WHICH ARE AS FOLLOWS: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN HOLDING THAT COMPUTER SOFTW ARE EXPENSES ARE REVENUE EXPENDITURE IN NATURE, WITHOUT CONSIDERING THAT, AF TER CATEGORICAL VERIFICATION BY THE AO THESE EXPENSES WERE FOUND CAPITAL IN NATU RE DURING THE ASSESSMENT PROCEEDINGS. 2. THE APPELLANT CRAVES TO LEAVE TO ADD, TO AMEND A ND/ OR TO ALTER ANY OF THE GROUNDS OF APPEAL, IF NEED BE. 3. THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROU NDS STATED ABOVE, THE ORDER OF THE CIT (A), CENTRAL VII, MUMBAI, MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 2. THE MATERIAL FACTS ARE LIKE THIS. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RENDERING INTERNATIONAL FREIGHT FORWARDING AND LOGI STICS MANAGEMENT SERVICES. IN THE COURSE OF ASSESSMENT PROCEEDINGS AO NOTED THAT THE ASSESSEE HAD PURCHASED EXCEL INDIA (P) LTD 2 COMPUTER SOFTWARE AGGREGATING TO RS 38,47,243/-, TH E DETAILS OF WHICH ARE AS FOLLOWS:- SR NO. NAME OF THE PAYEE NATURE OF EXPENSE AMOUNT 1 CHOICE INTERNATIONAL LTD SOFTWARE DEVELOPMENT WMS 11,38,000 2 NOVELLA SYSTEMS SOFTWARE DEVELOPMENT OF FA 2,56,000 3 SOFLINK IMPEX AKASH PACKAGE LICENSES 57,500 4 REDINGTON LTD MICROSOFT OFFICE LIENSES 13,76,000 5 MICROSENSE PVT LTD WINGATE INTERNET SOFTWARE 61,8 90 6 NETKRAFT PVT LTD WEB TRACKING SOFTWARE DEVELOPMENT 7,00,000 7 FAST FACTS COMPUTER SYSTEMS LTD TDS PAC 12,240 8 CYBERSPACE INFOSYS LTD LOTUS CCMAIL LICENSES 53,7 35 9 OTHERS VARIOUS LICENSES 1,91,578 TOTAL 38,47,243 3. THE ASSESSEE CLAIMED THE ABOVE EXPENDITURE IN TH E NATURE OF REVENUE EXPENDITURE AS, ACCORDING TO THE ASSESSEE, THIS EXP ENDITURE HAD NO ENDURING BENEFIT. IT WAS CONTENDED THAT THE SOFTWARE SO PURCHASED ARE EITHER TAILOR MADE SOFTWARE FOR SPECIFIC USAGE OR AS ONE TIME UTILITY SOFTWARE. IT WAS ALSO SUBMITTED THAT KEEPING IN MIND THE LIMITED USEFULNESS AND THE EXPENDITURE INC URRED ON PURCHASE OF SOFTWARE ARE ATTRIBUTABLE TO MAKE RUNNING AND CONDUCTING OF BUSI NESS ACTIVITY, THE SAME IS REQUIRED TO BE TREATED AS REVENUE EXPENDITURE. THE ASSESSEE ALSO MADE ELABORATE LEGAL SUBMISSIONS IN SUPPORT OF HIS CONTENTION THAT THE EXPENDITURE WAS INCURRED BY THE ASSESSEE ON SOFTWARE PURCHASE SHOULD BE TREATED AS REVENUE EXPENDITURE. NONE OF THESE SUBMISSIONS, HOWEVER, IMPRESS THE AO. HE REJECTED THE SAME AND PROCEED TO TREAT THE EXPENDITURE AS CAPITAL EXPENDITURE BY OBSERVING AS FOLLOWS:- ASSESSEES CONTENTION THAT, SOFTWARE ARE TAILOR MA DE SOFTWARE FOR SPECIFIC USAGE AND HAS ONE TIME UTILITY THEREFORE KEEPING IN MIND THE LIMITED USEFULNESS AND THE EXPENDITURE INCURRED ON THE PURCHASE OF SOF TWARE WAS ATTRIBUTABLE TO THE EFFICIENT AND ECONOMICAL RUNNING AND CONDUCTING OF THE BUSINESS ACTIVITY OF THE COMPANY AND THEREFORE THE EXPENDITURE INCURRED HAS BEEN CLAIMED AS A REVENUE EXPENDITURE. THIS CONTENTION OF THE ASSESS EE IS UNTRUE AND BY ANY STRETCH OF IMAGINATION IT CANNOT BE AFFIRMED THAT A SOFTWARE WAS USED FOR CLIENTELE BASIS, EVEN ON A PRIMA FACIE LOOK ON THE NATURE OF EXPENSES THROWS CLEAR PICTURE THAT THEY ARE NOT OF TAILOR MADE SOFT WARE, RATHER THEY ARE UNIVERSAL SOFTWARE USED BY ANY CONCERNS. THUS ONE JUDGE THAT THE USAGE IS OF COMMON IN NATURE AND NOT AS CONTEMPLATED BY THE ASS ESSEE. SIMILARLY THE ASSESSEE IN ITS SUBMISSION HAS AGREED THAT VARIOUS SOFTWARE UNDERGOES REGULAR UP GRADATIONS AND IS NOT A PERMAN ENT ONE TIME SOLUTION. EXCEL INDIA (P) LTD 3 THE SOFTWARE EXPENSE ALSO INCLUDES PROFESSIONAL CHA RGES INCURRED TOWARDS MAINTENANCE AND INSTALLATION OF SYSTEM, INTERNET SU BSCRIPTION AND EMAIL FACILITY. IN THIS ARGUMENT ALSO IT CAN BE SEEN THAT THE INITI AL EXPENDITURE IS CONSTRUED TO BE OF CAPITAL NATURE AND THE SUBSEQUENT MAINTENANCE OF SOFTWARE IS IN NATURE OF UPGRADATION AND PROFESSIONAL EXPENSES ARE REVENU E. IN THE INSTANT CASE THE EXPENDITURE INCURRED IS FIRST TIME AND ARE IN CAPIT AL NATURE. TO SUPPORT ITS CONTENTION THE ASSESSEE FURTHER EMPH ASIZED THAT ASSESSEE ACQUIRING SOFTWARE BY WAY OF TALLY SOFTWARE FOR A CCOUNTING FUNCTION AND THAT THERE WAS NO OWNERSHIP RIGHTS ATTACHED TO SUCH PURC HASE OF SOFTWARE. IT IS A PAYMENT, MERELY FOR OBTAINING LICENSE FOR USAGE OF SOFTWARE PROGRAMS. IN THIS CONTEXT THE ASSESSEES ARGUMENT IS NOT ACCEPTABLE F OR THE FACT THAT THE ACCOUNTING PACKAGE PURCHASED BY THE ASSESSEE COULD BE USED FOR N NUMBER OF YEARS WITHOUT ANY WITHDRAWAL OF THE RIGHTS ONCE CON FERRED ON THE ASSESSEE BY THE SOFTWARE SELLER COMPANY. THE ASSESSEE ALSO CONTENDED THAT ACQUISITION OF CA PITAL ASSETS FOR CAPITAL RIGHT MEANS ACQUIRING OF ANY TANGIBLE OR INTANGIBL E RIGHT WHICH CAN BE USED BY THE PURCHASER AS ITS ASSETS AND IT IS FREE TO USE, MODIFY OR DISPOSE OFF AS HE FEELS APPROPRIATE. THEREFORE, IT HAS TO BE CONSIDE RED AS THE USE CHARGES FOR THE LICENSE. THE ASSESSEES ARGUMENT IS INCORRECT AS THE UNINTERRUPTED USAGE RIGHTS IS AVAILABLE TO THE ASSESSEE AND THE BENEFIT S ACCRUED IS CONTINUOUS. THE RIGHT TO USE THE SOFTWARE CONSTITUTES A CAPITAL NAT URE. THE ASSESSEES CONTENTION REGARDING OBSOLESCENCE OR UPGRADATION DO ES NOT CUT ANY ICE BECAUSE OBSOLESCENE/UPGRADATION IS NOT A CRITERION TO DETERMINE THE CAPITAL NATURE OF AN ASSET. EVEN AFTER INTRODUCTION OF A M ERE SOPHISTICATED VARIETY, THE OLD ONES DO NOT LOOSE THEIR UTILITY, THOUGH THAT MA Y BE AFFECTED TO SOME DEGREE. BESIDES THE OPTION OF UP GRADATION IS ALWA YS AVAILABLE WITH THE ASSESSEE . THE ASSESSEE HAS RELIED ON PLETHORA OF CASE LAWS IN SUPPORT OF ITS CONTENTIONS. ON READING SUCH CASES THERE APPEARS TO BE NO NEXUS OR COINCIDENCE IN THE ASSESSEES FACTS AND CIRCUMSTANCES OF THE CASE AND THEREFORE SUCH CASES ARE OF NO HELP TO THE ASSESSEE . IN ITS FURTHER SUBMISSION VIDE LETTER DATED 24.12.2 007 THE ASSESSEE OBSERVED THAT THE COMPANY UNDERTAKES LOGISTIC SERVICES WHICH INVOLVE RECEIPT AND DISTRIBUTION OF MATERIAL ON BEHALF OF CLIENTS. IT IS FURTHER IMPORTANT TO NOTE THAT EACH CONSIGNMENT OF EACH OF THE CLIENT REQUIRES SEP ARATE CONFIGURATION AND CALCULATION FOR STORAGE AND DISTRIBUTION SERVICES A ND FOR CALCULATION OF STORAGE SPACE. THE COMPANY DURING THE YEARS HAS RENDERED L OGISTIC SERVICES TO VARIOUS MULTI NATIONALS AND FOR EACH OF THEIR SHIPMENT WHIC H RAN INTO LARGE HANDLING OF PARCELS. ON ANALYSIS OF THE SOFTWARE EXPENSES NO S PECIFIC SOFTWARE COULD BE IDENTIFIED TO CORRELATE THE USAGE FOR A PARTICULAR CONSIGNMENT. SOFTWARE SUCH AS TALLY, MS OFFICE, ANTIVIRIUS PACKAGE, TDS SOFTWA RE ARE MORE OR LESS OFF THE SHELF AND ARE FOR USE OF WHOLE BUSINESS (THIS HAS M ULTIPLE USAGE). IN THE LIGHT OF THE ABOVE THE ASSESSEES CONTENTION IS NOT ACCEP TABLE. EXCEL INDIA (P) LTD 4 LASTLY THE ASSESSEE HAS SOUGHT HELP OF THE AMENDMEN T MADE IN THE INCOME TAX RULES VIDE FINANCE ACT, 2004 WHEREBY DEFINITION OF THE ASSETS UNDER HEARD COMPUTER HAVE BEEN AMENDED AND NOW IT STATED AS COMPUTER INCLUDING COMPUTER SOFTWARE. HERE IT HAS TO BE NOTED THAT D EPRECIATION SCHEDULE UNDER THE INCOME TAX ACT, PROVIDES 100% DEPRECIATION IN R ESPECT OF A NUMBER OF ASSETS MOST OF WHICH ARE PRESUMED TO BE FULLY DEPRE CIATED IN ONE YEAR BUT THAT DOES NOT RENDER SUCH ASSETS AS REVENUE OUTGOING. H OWEVER IT APPEARS THAT THE LEGISLATURE HAS INCLUDED SOFTWARE WITH COMPUTER AS CAPITAL ASSET AND THE RELEVANT RATE OF DEPRECIATION SHOULD BE ALLOWED LEG ALLY THUS IN VIEW OF THE COMMON LAW THOUGH NOT RETROSPECTIVE, THE ASSESSEES MOOT ARGUMENT AT THE TIME OF ASSESSMENT PROCEEDINGS THAT THESE SO FTWARE EXPENSES ARE ALSO IN THE NATURE OF REPLACEMENT COST WHICH AR E DUE TO CRASH OF OLD SOFTWARE, THE SAME IS TAKEN CONGNIZANCE, AND AR E TREATED AS CAPITAL EXPENDITURE, HOWEVER AS DISCUSSED ABOVE IN VIEW OF NATURAL JUSTIFICATION THOUGH NOT RETROSPECTIVE IT IS IN THE FITNESS OF THINGS TO ALLOW 60% AS DEPRECIATION ON THE SOFTWARE EXPENSES. ACCORDINGLY, THE TOTAL DEBIT ON THIS ACCOUNT IN THE P&L ACCOUNT IS R S 38,47,243/- OUT OF WHICH 2,49,078 IS TREATED AS REVENUE AND THE BALANC E 35,98,165/- IS TREATED AS CAPITAL EXPENDITURE AND ADDED TO THE TOT AL INCOME HOWEVER DEPRECIATION @ 60% ON THIS WHICH WORKS OUT TO RS 21 ,58,899/- IS ALLOWED. 4. AGGRIEVED BY THE STAND SO TAKEN, THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE CIT (A). THE LEARNED CIT (A) IN VERY WE LL REASONED AND ELABORATE ORDER DISCUSSED THE NATURE OF THE SOFTWARE SO PURCHASED B Y THE ASSESSEE, FOLLOWING THE SPECIAL BENCH DECISION OF THIS TRIBUNAL IN A CASE O F AMWAY INDIA ENTERPRISES VS DCIT (21 SOT 1) AND HELD THAT THE EXPENDITURE IN QUESTIO N TO BE REVENUE EXPENDITURE WHILE DOING SO THE LEARNED CIT (A), INTER ALIA , OBSERVED AS FOLLOWS:- 5. I HAVE CAREFULLY CONSIDERED THE ABOVE FACTS AND FIND SUFFICIENT MERITS IN THE CONTENTIONS OF THE APPELLANT. AT THE OUTSET, I T MAY BE STATED HERE THAT COMPUTER SOFTWARE HAS BEEN TREATED AS CAPITAL ASSET ONLY W E F AY 2004-05 AND THE AMENDED PROVISIONS ARE NOT SPECIFICALLY BRO UGHT INTO THE STATUTE ON RETROSPECTIVE BASIS. ACCORDINGLY, THE AMENDED PROV ISIONS ARE NOT APPLICABLE TO THE YEAR UNDER CONSIDERATION. 5.1 NOW COMING TO THE EXACT NATURE OF THE EXPENDIT URE INCURRED, IT HAS TO BE BORNE IN MIND THAT THE APPELLANT HAS BEEN FOLLOWING A CONSISTENT ACCOUNTING PRACTICE OF TREATING A PART OF SOFTWARE EXPENSES, O THER THAN AMOUNT INCURRED ON ACQUISITION OF AN OPERATING SYSTEM WHICH ARE EXP ENSES OFF IN THE YEAR OF PURCHASE AS REVENUE WHILE THE REST ARE CAPITALIZED. FOR EXAMPLE, EXPENDITURE INCURRED ON PURCHASE OF MICROSOFT WINDOWS OPERATING SYSTEM HAS BEEN CAPITALIZED AND ONLY EXPENDITURE IN THE NATURE OF R EPLACEMENT OR THE EXPENDITURE ON THE SOFTWARE PURCHASED WITH A VIEW T O ONE TIME UTILITY IS CLAIMED AS A REVENUE EXPENDITURE. EXCEL INDIA (P) LTD 5 5.2 AS REGARDS, INDIVIDUAL INSTANCES OF EXPENSES UN DER DISPUTE, IT IS EVIDENT THAT ALL SUCH EXPENSES WERE RELATED TO REPLACEMENT, RENEWAL AND UP GRADATION OF THE EXISTING SOFTWARE AND DO NOT CONSIST OF FIRS T TIME CAPITAL ACQUISITION. THE APPELLANT HAS UTILIZED THE SERVICES OF M/S NOVELLA SYSTEM AND MANAGEMENT CONSULTANTS PRIVATE LIMITED FOR SOFTWARE MAINTENANC E AND AS EVIDENT FROM THE COPIES OF BILLS AND VOUCHERS, SUCH EXPENSES ARE CLE ARLY IN THE NATURE OF MAINTENANCE AND CANNOT BE CONSIDERED TO BE CAPITAL IN NATURE. IT IS SEEN FROM THE COPIES OF BILLS THAT THEY CLEARLY MENTION CHARG ES FOR SOFTWARE MAINTENANCE SUPPORT, ENHANCEMENT AS PER REQUIREMENTS AND BRANCH IMPLEMENTATION FOR VARIOUS MONTHS. THE APPELLANT HAS ALSO FILED WORK REPORT FOR DIFFERENT MONTHS WHICH GO TO SHOW THAT THE JOB CARRIED OUT ARE PUREL Y DAY TO DAY MAINTENANCE ONLY DONE ON REGULAR BASIS. LIKEWISE, SOFTWARE ON TDS IS REQUIRED TO UPGRADE THE EXISTING SOFTWARE ON ACCOUNT OF FREQUENT CHANGE S AND AMENDMENTS IN THE PROVISIONS PERTAINING TO TDS LIABILITIES OF THE TAX PAYERS. IT IS SEEN FROM THE COPY OF BILL THE TDS SOFTWARE WAS NEW, IN PLACE OF THE OLD EXISTING VERSION. IT IS ALSO NOTICED FROM THE APPELLANT HAD ALREADY INST ALLED MICROSOFT SOFTWARE SUCH AS MS 97,98 ETC, CAPITALIZED IN THE PAST, WHICH HAV E BEEN UPGRADED TO HIGHER VERSIONS DURING THE YEAR. THUS, THE EXPENDITURE INC URRED PERTAINING TO UPGRADATION OF THE EXISTING TECHNOLOGY IN THE NATUR E OF REVENUE EXPENDITURE. 5.3 IN THIS CONTENTION, I WOULD LIKE TO NARRATE THE OBSERVATIONS AND FINDINGS IN THE CASE OF AMWAY INDIA ENTERPRISES VS DCIT (200 8) 21 SOT 1(DEL) (SPECIAL BENCH), WHERE IT WAS STATED THAT IN ORDER TO DECIDE THE NATURE OF EXPENDITURE AS TO WHETHER IT IS CAPITAL OR REVENUE, THREE TESTS IE OWNERSHIP, ENDURING BENEFIT AND FUNCTIONAL TESTS HAVE TO BE DONE. WHEN THE ASSESSEE ACQUIRES A COMPUTER SOFTWARE OR FOR THAT MATTER THE LICENCE TH EREOF, THIS QUESTION CANNOT BE DECIDED ON THE BASIS OF OWNERSHIP ALONE BUT HAS TO BE SEEN FROM THE POINT OF UTILITY TO THE BUSINESS AND HOW IMPORTANT AN ECO NOMIC OR FUNCTIONAL ROLE IT PLAYS IN THE BUSINESS. WHEN THE SOFTWARE BECOMES O BSOLETE WITH TECHNOLOGICAL INNOVATION AND ADVANCEMENT WITHIN A SHORT SPAN OF T IME, IT CAN BE SAID THAT WHERE LIFE OF SOFTWARE IS SHORT (SAY LESS THAN TWO YEARS), IT MAY BE TREATED AS REVENUE EXPENDITURE; ANY SOFTWARE HAVING UTILITY TO THE ASSESSEE FOR A PERIOD BEYOND TWO YEARS CAN BE CONSIDERED AS ACCRUAL OF BE NEFIT OF ENDURING NATURE. HOWEVER, OTHER TESTS HAVE TO BE APPLIED AND THE ADV ANTAGE WHICH THE ASSESSEE DERIVES FROM ITS USE HAS TO BE SEEN IN A COMMERCIAL SENSE AND IF THE ADVANTAGE WHICH THE ASSESSEE DERIVES FROM ITS USE HAS TO BE S EEN IN A COMMERCIAL SENSE AND IF THE ADVANTAGE CONSISTS MERELY IN FACILITATING THE TRADI NG OPERATIONS TO ENABLING THE MANAGEMENT AND CONDUCT O F THE BUSINESS TO BE CARRIED ON MORE EFFICIENTLY OR MORE PROFITABL Y WHILE LEAVING THE FIXED ASSETS UNTOUCHED, THE EXPENDITURE ON REVENUE ACCOUNT . SEEN IN THE LIGHT OF SUCH OBSERVATIONS AND FINDINGS, IN THE PRESENT CASE, IT APPEARS THAT THE APPELLANT HAS MERELY GONE FOR REGULAR UP GRADAT ION AND MAINTENANCE OF THE EXISTING SOFTWARE SO AS TO RUN THE BUSINESS ACTIVIT IES IN MORE EFFICIENT AND PROFITABLE MANNER. 5.4 IN OTHER CASE OF CIT VS G E CAPITAL SERVICES LT D (2008) 300 ITR 420 (DEL) WHERE ALSO THE ASSESSEE WAS USING MS OFFICE S OFTWARE WHICH REQUIRED EXCEL INDIA (P) LTD 6 FREQUENT UPGRADATION, THE EXPENDITURE WAS HELD TO B E REVENUE IN NATURE. IT WAS OBSERVED THAT TECHNOLOGICAL CHANGES AND THE NEE D TO UPGRADE SOFTWARE ON REGULAR BASIS CANNOT BE TREATED AS ENDURING ADVANTA GE. 5.5 HOWEVER, IT MAY BE STATED HERE THAT THE APPELLA NT HAS CLAIMED TO HAVE MADE PAYMENT OF RS 7 LAKH TO ONE NETKRAFT P LTD FOR TAILOR MADE SOFTWARE. HOWEVER, NOTHING HAS BEEN BROUGHT ON RECORD TO SUPP ORT SUCH A CONTENTION. THE APPELLANT HAS FAILED TO PRODUCE NECESSARY DETAI LS IN THIS REGARD EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE UNDERSIG NED. THE ASSESSING OFFICER HAS RIGHTLY POINTED OUT THAT THE APPELLANT COULD NO T ESTABLISH SUCH A CALIM BEFORE HIM AS WELL. ACCORDINGLY, SUCH AN EXPENSES CANNOT BE CONSIDERED TO BE REVENUE IN NATURE. THE ADDITION MADE IN THIS REGAR D IS UPHELD. IT MAY ALSO BE STATED HERE THAT THE ASSESSING OFFICER HAS INCORREC TLY ALLOWED DEPRECATION AT THE RATE OF 60% ON SUCH SOFTWARE DURING THE RELEVAN T YEAR THOUGH THE SAID RATE IS APPLICABLE FORM AY 2003-04. RELIANCE IS PLACED ON SUDARSHAN CHEMCIALS INDUSTRIES LTD VS ACIT (2008) 301 ITR (AT) 347 (PUN E). THE APPELLANT IS THEREFORE, ELIGIBLE FOR DEPRECIATION AT THE RATE OF 25% ONLY. ACCORDINGLY, THE ASSESSING OFFICER WOULD RESTRICT THE DEPRECIATION T O SUCH A RATE ONLY. 5. MRS VANDANA SAGAR, LEARNED DEPARTMENTAL REPRESEN TATIVE INVITED OUR ATTENTION TO HONBLE RAJASTHAN HIGH COURT JUDGMENT IN A CASE OF CIT VS ARAVALLI CONSTRUCTION CO LTD (259 ITR 30) AND SUBMITTED THAT IN THE LIGHT OF HONBLE RAJASTHAN HIGH COURT JUDGMENT THE EXPENDITURE ON COMPUTER SOF TWARE IS REQUIRED TO BE DEDUCTED AS CAPITAL EXPENDITURE. SHE ALSO SUBMITTE D THAT THE NATURE OF SOFTWARE PURCHASED ALSO CLEARLY SHOWS THAT THE BENEFIT OBTAI NED FROM SUCH SOFTWARE IS SPREAD OVER LONGER PERIOD AND SHOULD THEREFORE BE HELD TO BE CAPITAL EXPENDITURE IN NATURE. HOWEVER, WHEN IT WAS POINTED OUT TO THE LEARNED DEP ARTMENTAL REPRESENTATIVE THAT HONBLE RAJASTHAN HIGH COURT JUDGMENT IN THE CASE O F ARAVALLI CONSTRUCTION CO LTD (SUPRA) HAVE BEEN DULY TAKEN NOTE OF IN THE SPECIAL BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF AMWAY INDIA ENTERPRISES (SUPRA) AND ALL THAT THE CIT (A) HAS DONE IS TO FOLLOW THE SPECIAL BENCH DECISION, LEARNED DEPARTME NTAL REPRESENTATIVE PLACED HER RELIANCE ON THE ORDER OF THE AO AND ALSO ON THE JUD GMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF ARAVALLI CONSTRUCTION CO LTD ( SUPRA). SHRI V D KOTHARI, THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND SUBMITTED THAT THE SOFTWARE WHICH HAS BEEN CLAIMED TO BE REVENUE EXPENDITURE IS SUCH THAT IT HAS A SHORT USEFUL LIFE. IT WAS POINTED OUT THAT THE SOFTWARE PURCHAS ED IS PRIMARILY IN THE NATURE OF REPLACEMENT AND RENEWALS. THE LEARNED COUNSEL SUBM ITTED THAT PRODUCTS LIKE ANTI- VIRUS SOFTWARE, SOFTWARE FOR TAX DEDUCTION AT SOURC E, SOFTWARE FOR DIRECT TAXES, MS EXCEL INDIA (P) LTD 7 OFFICE SOFTWARE AND SUCH OTHER SOFTWARE ARE GOOD FO R USE ONLY FOR A LIMITED PERIOD AND REQUIRE CONSTANT UP GRADATION AND RENEWALS. IT WAS SUBMITTED THAT IN THE LIGHT OF THE SPECIAL BENCH DECISION OF THIS TRIBUNAL IN THE CASE OF AMWAY INDIA ENTERPRISES (SUPRA) SUCH EXPENDITURE ARE REQUIRED TO BE TREATED AS REVENUE EXPENDITURE. WE ARE THUS URGED TO UPHOLD THE STAND TAKEN BY THE CIT (A) AND DECLINE TO INTERFERE IN THE MATTER. 6. HAVING GIVEN OUR CAREFUL CONSIDERATION AND HAVIN G PERUSED THE MATERIAL ON RECORD WE ARE OF THE CONSIDERED VIEW THAT THE FINDI NGS OF THE CIT (A) DO NOT CALL FOR ANY INTERFERENCE FROM US. AS LEARNED CIT (A) HAS R IGHTLY NOTED WHEN A SOFTWARE BECOMES OBSOLETE WITH TECHNOLOGICAL INNOVATION AND ADVANCEMENT WITHIN A SHORT SPAN OF TIME, I.E. LESS THAN TWO YEARS, IT MAY BE TREATE D AS REVENUE EXPENDITURE. IT WAS SO HELD BY THE SPECIAL BENCH IN THE CASE OF AMWAY INDI A ENTERPRISES (SUPRA). WHETHER A PARTICULAR SOFTWARE IS IN THE NATURE OF REVENUE E XPENDITURE OR CAPITAL EXPENDITURE MUST DEPEND ON THE FACTS OF EACH CASE. NORMALLY, E XPENDITURE ON SOFTWARE WHICH REQUIRE CONSTANT UP GRADATION OR RENEWAL OR FOR A S HORT USEFUL LIFE IS TO BE TREATED AS A REVENUE EXPENDITURE. IT IS NOT THE CASE OF THE REV ENUE THAT THE SOFTWARE PURCHASED BY THE ASSESSEE ARE OF THE OPERATING SYSTEM OR AS S UCH IT HAS A LONG USEFUL LIFE OR THAT THE TESTS LAID DOWN BY THE SPECIAL BENCH IN TH E CASE OF AMWAY INDIA ENTERPRISES (SUPRA) HAS BEEN WRONGLY APPLIED. IN VIEW OF THIS DISCUSSION AND BEARING IN MIND THAT THE CIT (A)S HAS MERELY FOLLOWED SPECIAL BENC H DECISION AND HAS RIGHTLY APPLIED THE TESTS OF DECIDING WHETHER THE PARTICULAR SOFTWA RE EXPENDITURE IS REVENUE EXPENDITURE OR CAPITAL EXPENDITURE AS ENVISAGE IN T HE SAID SPECIAL BENCH DECISION IN THE CASE OF AMWAY INDIA ENTERPRISES (SUPRA). WE SE E NO REASONS TO INTERFERE IN THE MATTER, THE FINDINGS OF THE CIT (A) ARE CONFIRMED. EXCEL INDIA (P) LTD 8 7. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 26TH OCT OBER 2009. SD/- (V D RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 26TH OCTOBER 2009 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CENTRAL-VII, MUMBAI. 4) THE CIT CENTRAL-1, MUMBAI. 5) THE D.R. E BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI EXCEL INDIA (P) LTD 9 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 22.10.09 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 22.10.09 26.10.09 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER