TaxTMI 
TaxTMI 
2013 (8) TMI 628
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....ways. It is submitted that on the facts & circumstances of the case, the CIT(A) ought to have allowed depreciation as claimed by the appellant. It is submitted that it be so held now." 2.0 The above ground was adjudicated by the Hon'ble Bench vide para 17 on page 13 of the order which is reproduced here under: "We have heard both the sides and gone through the terms and conditions of lease agreement mentioned on page no. 29 and explanation at page no.30 by the A.O. in assessment order and Special Bench decision in case of M/s.lnduslnd Bank Limited vs. The Addl. Commissioner of Income- tax in ITA No. 6566/Mum/2002 for A. Y. 1998-99 and ITA No. 606/Mum/2003 for A. Y 1999-2000. A fresh re-look is required as Co- ordinate Bench had given findings in above case after considering the Hon'ble Supreme Court decision in case of ABB Ltd. (supra). Therefore, this issue is set aside to the A.O. for de novo after considering the decision of M/s. Induslnd Bank Ltd. (supra). Accordingly, this ground of appeal is restored back to the A. O." 3.0 During the course of hearing, it was brought to the notice of Hon'ble Bench the decision in applicant's own case for earlier years i.e. A.Y. 2003-....
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....part of block of assets in that year and thereafter what is followed in subsequent year is only WDV of that asset which goes on reducing by granting depreciation on year to year basis. Changing the texture of the decision in- between the years can only create confusion and pose the difficulties in passing consequential order. 5.3 The above being the mistakes apparent from record, the applicant requests Hon'ble Bench to rectify the same and follow the order of earlier years in its own case in the interest of justice by suitably modifying the impugned order. In view of the aforesaid facts, the Co-ordinate Bench allowed the M.A. of Assessee by holding as under:- 2. We have considered the assessee's application and accordingly, we allow the miscellaneous application. The Registry is directed to fix the case before the regular Bench. 2. Pursuant to the order of the Co-ordinate Bench, therefore the only issue before us in the present appeal reads as under:- 4. In law and in the facts and circumstances of the appellant's case, the learned Commissioner of Income Tax (Appeals) has erred in confirming disallowance of depreciation amounting to Rs. 7,93,490/- on the assets lease....
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....Rs. 1 Wagons 1995-96 93937200 2 Captive Power Plant 1999-00 312990556 3 Plant and machinery incinerator 1998-99 26333260 4 Plantand Machinery- SAT & NOX unit 1998-99 54679889 During the year, the company earned the lease rent of Rs. 12,51,30,606/-, which has been credited to the Profit and loss account and shown as income. Further, as per accounting guidance note, an amount of Rs. 1,21,41,524/- being lease equalization amount has been debited to the profit and loss account. The company is maintaining the lease equalization account for the assets given on lease in order to comply with the accounting standard and guidance note issued by the Institute of chartered Accountant of India" In order the justify its claim of depreciation the assessee raised various contentions which are summarized as under: i. the company is authorised by its Memorandum of Association to do lease business and thus leasing is one of the business, of the company. ii. The company has purchased the assets viz. Railway Wagons and Captive Power Plant which are given on lease to Western Railway and Narmada Chematur Petrochemicals Co. Ltd. (NCPL) respective....
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....will not be used for the purpose and use of the assessee i.e. the lessor. The insurance has been taken by the lessee on behalf of the lessor. It is not a finance lease since the period of lease does not start from the date of finance of the assets but at a later date. 34. On the other hand, the learned D.R. relied upon the order of the A.O. as pages 43 and 44 and in specific relied upon the decision of the Hon. Supreme Court in the case of Asea Brown Boveri Ltd. vs. Industrial Finance Corporation, dated 27.10.2004 which has been placed on record. 35. We have heard the rival contentions and perused the facts of the case. As regards reliance on the decision of the Hon. Supreme Court in the case of Asea Brown Boveri Ltd. (supra) by the learned DR, the arguments of the learned D.R that the assessee had purchased the equipments for the economic life of the plant itself and not more than that. As a matter of fact, it is not a case, as is appearing from different clauses of the lease deed that the equipments leased will be returned back to the lessor after the expiry of the lease. Nothing has been brought to disapprove the said clauses of the lease deed by any of the authorities bel....