IN THE HIGH COURT OF DELHI AT NEW DELHI 
 42 
         ITA 1075/2010  
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 CIT 
 ..... Appellant 
 Through Ms. Suruchi Aggarwal, Adv. 
 versus 
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 SMS DEMAG PVT LTD                                              ..... 
 Respondent 
 Through None. 
 CORAM: 
 HON'BLE THE CHIEF JUSTICE 
 HON'BLE MR. JUSTICE MANMOHAN 
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 O R D E R 
                               05.08.2010 
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 Heard Ms. Suruchi Aggarwal, learned counsel for the revenue. 
 The present appeal preferred under Section 260A of the Income Tax Act, 
 1961 is admitted on the following substantial questions of law:- 
 1. Whether the Income Tax Appellate Tribunal could have held that the 
 maintenance charges for software (SAP) cannot be treated either as royalty/fees 
 for technical services in view of the fact that a plain reading of Section 40(a) 
 (i) shows that any interest, royalty fee for technical services or sum 
 chargeable under this Act, which is payable outside India or inside India to a 
 non-resident not being a company or to a foreign company on which tax is 
 deductible at source and such tax has not been deducted or, after deduction, has 
 not been paid during the previous year or in the subsequent before the expiry of 
 time, shall not be allowed, while computing the income chargeable under the head 
 ?profits and gains of business or profession?? 
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 2. Whether the Income Tax Appellate Tribunal could have held that the payment 
 for purchase of SAP software cannot be charged to tax 
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 ITA 1075/2010                                                           page 1 
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 in India as interest or royalty or fee for technical services, as the assessee 
 has not submitted anything to establish that the said payment is not in the 
 nature of interest/royalty/fees for technical services? 
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 3. Whether the Income Tax Appellate Tribunal could have allowed depreciation as 
 payment incurred towards installation of a software named ?SAP?, being in the 
 nature of royalty/fees for technical services/interest cannot be capitalized? 
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 4. Whether the Income Tax Appellate Tribunal has erred in holding that provision 
 of section 40(a)(i) are not applicable for claim for deduction under Section 32 
 of the Act, in order to delete disallowance of 50% of depreciation? 
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 Issue notice. 
 Filing of paper book stands dispensed with. 
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 CHIEF JUSTICE 
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 MANMOHAN, J 
 AUGUST    05, 2010 
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 ITA 1075/2010                                                           page 2 
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