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4 Excel India (P) Ltd Lastly the assessee has sought help of the amendment 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 Depreciation Schedule under the Income Tax Act, provides 100% depreciation in respect of a number of assets most of which are presumed to be fully depreciated in one year but that does not render such assets as revenue outgoing. However it appears that the legislature has included software with computer as capital asset and the relevant rate of depreciation should be allowed legally Thus in view of the common law though not retrospective, the assessee's moot argument at the time of assessment proceedings that these software expenses are also in the nature of replacement cost which are due to crash of old software, the same is taken congnizance, and are 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 Rs 38,47,243/- Out of which 2,49,078 is treated as revenue and the balance 35,98,165/- is treated as capital expenditure and added to the total income however depreciation @ 60% on this which works out to Rs 21,58,899/- is allowed.