TaxTMI 
TaxTMI 
2019 (9) TMI 1637
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....ogether and are being disposed of by way of this common order for the sake of convenience. 2. The grounds raised by the assessee in these seventeen appeals are as under:- (a) ITA No. 239/Bang/2018, A. Y. 1995-96:- "1) The order of the C.I.T (A) Mangalore (hereinafter referred to as the Appellate Officer) so far as it is against the appellant is against law, facts of the case and weight of evidences. 2) a) The learned appellate officer has erred in ignoring the CBDT circular No 2 of 2001 which has specifically issued to the department not to follow the directions issued by the Institute of Chartered Accounts of India to its members and allow the depreciation. b) The learned appellate officer has erred in overlooking the decision of the jurisdictional ITAT in allowing the depreciation in the case of Manipal Finance Ltd vs J.C.I.T(Asst) Special Range Mangalore (ITA No 294(Bang)/99, 344 & 644 (Bang)/99 which has been accepted by the department. c) Hence the depreciation as claimed be allowed and deduction now allowed for payment towards capital portion be disallowed. 3) The learned appellate officer has erred in confirming the di....
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....vs J.C.I.T(Asst) Special Range Mangalore (ITA No 294(Bang)/99, 344 & 644 (Bang)/99 which has been accepted by the department. c) Hence the depreciation as claimed be allowed and deduction now allowed for payment towards capital portion be disallowed. 3) The learned appellate officer has erred in confirming the disallowance of depreciation on the assets leased to certain educational institutions by AO based on the decision of the High Court of Karnataka in the case of ICDS vs CIT Karnataka. Hence the depreciation as claimed be allowed. 4) The appellant prays it may be permitted to raise further ground the time of hearing of the appeal." (d) ITA No. 242/Bang/2018, A. Y. 1998-99 :- "1. The order of the Commissioner of Income Tax (Appeals) Mangalore (hereinafter after referred to as the Appellate Officer) so far as it is against the appellant is against law, facts of the case and weights of evidences. 2. Learned Appellate Officer has erred in ignoring the decision of the jurisdictional ITAT in allowing depreciation on leased assets in the case of Manipal Finance ltd vs J.C.I.T (Asst) Special Range Mangalore which has been accepted b....
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.... the "assessee should be gracious to acknowledge its mistake" and not agitate for "what is not due to him" 3. The appellant prays that it may be permitted to raise additional grounds of appeal at the time of hearing of this appeal." (g) ITA No. 245/Bang/2018, A. Y. 2000-01 :- "1. The order of the commissioner of Income tax (Appeal) Mangalore (hereinafter referred as the Appellate Officer) so far as it is against the appellant, is against law, facts of the case and weight of evidences. 2. a) The learned Appellate Officer has erred in ignoring the decision of the Income Tax Appellate Tribunal Bangalore in the case of Manipal Finance Ltd vs. J.C.I.T (Asst) Special Range Mangalore on leased assets based on CBDT circular No2/2001 which has been accepted by department and confirming the action of Assessing Officer, in disallowing the depreciation given on lease for earlier year for this year also. b) The Appellate officer has erred is concluding the Apex Court's decision in the case of ICDS Ltd vs. C.I.T (Mysore) applicable only to motor vehicles and not to other assets given on lease. 3. The appellant prays it may be allowed to r....
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....ming the action of the Assessing officer in disallowing depreciation on assets given on lease. b) The Appellate officer has erred in concluding the Apex court's decision in the case of ICDS Ltd vs C.I.T Mysore applicable only to motor vehicles given on lease. 3. The learned Appellate officer has erred in holding that delay in getting refund from department is due to appellant not filing TDS certificate on time "as such should be gracious to acknowledge its mistake and not agitate for what is not due to him" when the facts are quite to the contrary. 4. The appellant prays it may be allowed to raise additional grounds of appeal at the time of hearing of this appeal." (k) ITA No. 249/Bang/2018, A. Y. 2004-05 :- "1. The order of the commissioner of Income tax (Appeal) Mangalore (hereinafter referred as the Appellate Officer) so far as it is against the appellant, is against law, facts of the case and weight of evidences. 2. a) The learned Appellate Officer has erred in ignoring the decision of the Income Tax Appellate Tribunal Bangalore in the case of Manipal Finance Ltd vs. J.C.I.T (Asst) Special Range Mangalore on leased asset....
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....he High Court of Karnataka in the case of Manipal Finance Corporation Ltd that the amount forgone by deposit holders is a capital receipt not taxable to income tax and confirming the addition now made by assessing officer. 5. The appellant prays that it may be permitted to raise further grounds of appeal at the time of hearing of this appeal." (n) ITA No. 252/Bang/2018, A. Y. 2007-08 :- "1. The order of the Commissioner of Income Tax (A) Mangalore so far as it is against appellant is against law, facts of the case and weight of evidences. 2. The learned Appellate officer has erred in concluding the appellant is not entitled to claim depreciation on assets leased out to customers as the lease is a financial lease in spite of the CBDT circular No 2/2001 and the decision of ITAT Bangalore in the case of Manipal Finance Ltd vs. J.C.I.T (Asst) Special Range Mangalore which has been accepted by the department. 3. The learned Appellate Officer has erred in concluding the decision of Apex Court in case of ICDS ltd vs C.I.T (Mysore) is only applicable for motor vehicles given on lease and not for other goods given lease. 4. The appellate....
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....fficer has erred in concluding the decision of Apex Court in case of ICDS ltd vs C.I.T (Mysore) is only applicable for motor vehicles given on lease and not for other goods given lease. 4. The appellate officer has erred in ignoring the decision of the High Court of Karnataka in the case of Manipal Finance Corporation Ltd that the amount forgone by deposit holders is a capital receipt not taxable to income tax and confirming the addition now made by assessing officer. 5. The appellant prays that it may be permitted to raise further grounds of appeal at the time of hearing of this appeal." (q) ITA No. 255/Bang/2018, A. Y. 2012-13:- "1. The order of the Commissioner of Income Tax (A) Mangalore so far as it is against appellant is against law, facts of the case and weight of evidences. 2. The leased Appellate officer has erred in concluding the appellant is not entitled to claim depreciation on assets leased out to customers as the lease is a financial lease in spite of the CBDT circular No 2/2001 and the decision of ITAT Bangalore in the case of Manipal Finance Ltd vs. J.C.I.T (Asst) Special Range Mangalore which has been accepted by the d....
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....on or finance transactions. In reply, it was submitted by the learned AR of the assessee that the lease agreements are not readily available The bench observed that in the assessment order, the AO has given a categorical finding on page 37 in A. Y. 1995-96 that the transactions in question is a financial transaction and not lease transaction and in spite of this, the assessee has not brought on record the relevant lease agreements to controvert this finding of the AO and therefore, the bench has no option but to give due weightage to this finding of the AO because no material has been brought on record by the assessee to dislodge this finding of the AO. In reply, learned AR of the assessee had nothing specific to say although, he made some arguments and reliance was placed by him on the judgment of Hon'ble Madras High Court rendered in the case of First Leasing Co. of India Ltd. Vs. ACIT as reported in356 ITR 128, copy available on pages 85 to 104 of the paper book. It was also submitted that extract of CBDT circular No. 762 dated 18.02.1998 is available on pages 83 to 84 of the paper book and it should be considered for deciding this issue. Written submissions are also available i....
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....iation disallowed by AO in the assessment of which 23 confirmed by CIT-A and issue before Honourable Bench are listed in Annexure-1. These include 4 contracts of sale and lease back of Asst year 1992-93, 1993-94 and 1994-95 disallowed following the ITAT order for those years. Said order is enclosed in the paper book (pages 23 to 30). In these contracts the AO has granted deduction for capital recovery. 2. The written submissions made before the CIT-A are separately given Si No 12 (Page 127 to 136 of the paper book). The submissions now are to supplement the submissions made before CIT-A and put the issues in perspective. 3. The Appellant is a finance company which was classified under the then NBFC Directions of RBI as a Leasing and Hire Purchase Finance Company, the classification based on the portfolio of financing contracts. As a Leasing and Hire Purchase Finance Company it could collect deposits from the public over 10 times its net worth of, where as a "loan company" it could have only collected deposits from the public only up to one time the net worth. The financing through contracts structured as hire purchase or lease contracts was as per the then policy ....
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....ks of finance companies, the accounting treatment of monthly "Hire Charges" and "EMI" were same - the monthly instalments were to be split into "principal" and "Income" Components. - The principal component went to reduce the "Stock on Hire" in case of Hire Purchase Contracts or Loan balance in case of Loan and income component in the "Hire Charges" or "EMI" was taken to its Profit & Loss Account. In the case of Contracts of Lease, the monthly lease rental was taken to the Profit and Loss as income. The charge against that income came through depreciation. The Customers on the other hand would classify the movables obtained on hire purchase finance or loan under Fixed Assets in their Balance Sheets and claim depreciation on the same in the IT Computation. In the case of lease, the entire lease rent was charged to the P&L. 6. This treatment in the Income Tax Return of Hire Purchase and Lease transactions was being accepted by the Department. The Assessing Officers in the assessment would rely on the accounts of the assessees and unless the transactions was a sham, asset was nonexistent, the computations were not disturbed. The concept of Finance Lease and Operating Lease di....
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....as to recognise an appropriate charge to the profit & loss account with a separate disclosure thereof. (Paragraphs 24 and 25). The Guidance Note did not require lessees to disclose the assets taken on lease as their fixed assets and claim depreciation. 8. After the introduction of the Guidance Note the leasing contracts of the Appellant were classified as Finance Leases as required by the Guidance Note. However in the initial years after introduction of the Guidance Note the claim of the Appellant for depreciation in respect of leased assets was not denied or disturbed. However, in Asst Year 1992-93, 1992-94 and 1994-95 the AO questioned certain sale and lease back transactions on the ground that these transactions were sham, assets bought were having Nil wdv and purpose was to reduce the taxable income and disallowed depreciation on 5 sale and lease back transactions. Out of 5, 4 were upheld by the CIT-A. However, he allowed deduction for capital recovery on the same. The one Sale and Lease back transaction with Kongrar Clothes and Synthetics Limited was allowed by CIT-A and not contested by the Department before the ITAT. In Appellant's appeal for AY 1992-93, 1993-94....
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....al Finance Corporation Limited in ITAs No 249/Bang/99 and 344&644/Bang/2000 for Assessment Years 1995-96,199697 and 1997-98 which have not been appealed by the Department and the decision of the Hon'ble Madras High Court in First Leasing Co of India Ltd vs ACIT [2013] 38 Taxmann.com 213 where similar reasons cited by the Department and Tribunal for holding the SLB transactions as sham were dismissed by the High court. As appellant has not gone on appeal against these orders the AO has disallowed the depreciation on these assets leased in earlier year in the assessments for AY 1995-96,1996-97 and 1997-98 and subsequent years and allowed deduction for capital recovery. 9. In the case of Manipal Finance Corporation Limited in ITAs No 249/Bang/99 and 344&644/Bang/2000 for Assessment Years 1995- 96,199697 and 1997-98 passed on 16th July 2004, ( decision enclosed in pages 31 to 52 of the paper book), the Honourable Bangalore Tribunal has allowed the claim of depreciation on sale and lease back transactions, distinguishing the order for AY 1992-93 to 1994-95 passed by it in the case of the Appellant. Of the 4 transactions which came up for adjudication, one was not a....
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....se. (Para 5 of the order). The Special court has rigidly applied the rule of pleadings and no effort was made to scrutinise the documents evidencing the transaction to determine the nature thereof. c. During the course of the hearing before the Court it was conceded at the Bar that the transaction between Fairgrowth and the appellant was concerned it was a transaction of lease finance. (Paragraph 7) and rights and obligations had to be worked out accordingly. Para 8, 9 and 10 discusses the nature of finance lease and the rights of the lessee. d. The dispute was primarily relating to the amount owed by ABB to terminate the hypothecation. (Para 6). e. As appellant was ready to pay the amount still found to be due and payable it was not considered necessary for the Court to adjudicate on the applicability of the provisions of Subsection (2) of Section 3 of the Special Court Act. f. The order of the Hon'ble Apex Court finally was to allow the petition and set aside the order of the Special Court directing the petitioner to hand over possession of the 56 cars. g. There is no discussion in the case on taxation of finance leases as observed....
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....he has doubt about valuation in sale and lease back transaction. The Board circular also obviously puts the onus on the AO to establish that a lease is a sham transaction. The AO is required to visit the place where the asset is purported to be installed to verify the existence or non existence of the asset. The AO in his orders for various Asst Years where there were new finance leases has only been making allegations of sham transactions only to disallow depreciation. This approach by AO has been commented upon by the Hon'ble Tribunal in the case of Manipal Finance Corporation Ltd (Supra). In the case of Manipal Finance Corporation ltd the asscssee's contention that Sale cum Lease Back is not illegal was accepted. He has also not co-ordinated with the AO of the Lessees to ensure there is no double disallowance of depreciation.. 13. The Departmental instructions do not make distinction between Finance Lease and Operating Lease and there are no instructions to disallow depreciation in the hands of Lessors in the case of Finance Leases. They only instruct for disallowance of depreciation where the asset does not exist or the moneys come back to the lessor t....
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....nn.com 353 (Karnataka) is enclosed in pages 121 to 126 of the paper book 15. Accordingly the Appellant be allowed the depreciation on the assets leased under finance lease, deduction for capital recovery allowed be added back. 16. Regarding assets leased to Educational Institutions the transactions are also covered in the decision of the Hon'ble Karnataka High Court in the case of Manipal Finance Corporation Limited vs ACIT Circle-1 Udupi [2014] 49 Taxmann.com 353 (Karnataka) . In the case of Sale and Lease back with related parties the decision of the Hon'ble Supreme Court in Pr Commissioner of Income Tax, City-1 vs Bombay Burmah Trading Corporation Ltd [2018] 256 Taxman 393 dismissed the SLP of the Department both on the grounds of delay as well as merits (see pages 119 to 120 of the paper book). Hence depreciation now disallowed be allowed. ANNEXURE-1 MAHARASHTRA APEX CORPORATION LIMITED PARTICULARS OF LEASE CONTRACTS WHERE DEPRECIATION DISALLOWED BY AO Contracts of Asst Year Lessee 1992-93 to 1994-95 J L Morrison India Ltd Sowparnika Yarn & Fabrics Limited Mysore Polymers VXL Whether Sale & Lease ba Yes Yes ....
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....ther Sale & Lease ba No No Cost 45,55,950 19,98,000 Total Repayments Lease Term Amount of Deposit 10,20,390 ANNEXURE-2 Printed from: http://www.taxcorp.in (TaxCorp Total Solution) TaxCorp e-Practice Mega DVD Direct Tax Circular : No. 9 [R. Dis. No. 27(4)-IT/43], dated 23-3-1943. Date: 23/03/1943 The following instructions are issued for dealing with cases in wh....
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....rted the orders of the lower authorities. He submitted that this issue is covered against the assessee by the tribunal order in assessee's own case for A. Ys. 1992-93 to 1994-95 in ITA No. 17, 48 & 87/Bang/2000 dated 06.10.2003, copy available on pages 23 to 30 of the paper book. Regarding another tribunal order available on pages 31 to 52 of the paper book rendered in the case of M/s Manipal Finance Corporation Ltd. Vs. JCIT in ITA No. 294/Bang/1999 & 344 and 644/bang/2000 dated 16.07.2004, he submitted that this tribunal order is not applicable in the present case. 5. We have considered the rival submissions. We find that not even one lease agreement is made available before us. The AO in the assessment order has discussed about various clauses of some lease agreements and after considering a tribunal order rendered in the case of Centre for Monitoring Indian Economy vs. DCIT in ITA No. 3820/Bom/1990, the AO noted that in this case of identical nature, the tribunal held that it was not a lease agreement but a hire purchase agreement camouflaged as lease agreement and in the absence of lease agreement, we have no option but to hold that there is no infirmity in the assessment o....
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....C.D.S Ltd. [2007] 161 TAXMAN 293 (KAR.) on the identical issue held against the assessee and held that the assessee is not entitled to claim depreciation on the assets. This issue attained finality and the appellant has not appealed against the High Court order. The relevant portion of the order is reproduced below: 18. The assessee acquires the asset in its name and leases it to the education institution which makes an interest bearing security deposit, equal to the entire value of the asset so leased, but agrees not to receive any interest which is to be adjusted entirely towards lease rentals. There is a remote possibility of termination of the lease and refund of the security deposit. 19. In the meanwhile the assessee claims depreciation on the asset, which the educational institution could not have claimed if it had directly acquired the asset, as it is exempt from payment of incometax. The further fact that the assessee and the lessees are managed by the same group of individuals, as directors in the assesseecompany and in other capacities, managing the lessees would leave no room for doubt that the transactions are blatantly geared to evade the tax liabilit....
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....d it to its customers and this is the business of the assessee. Regarding these assets, this is not the fact pointed out before us that almost equal amount of security deposit is received by the assessee from the lessee. Hence, this issue has to be decided on merit. In the present case, to examine these factual aspects, lease agreements have to be looked into but the same is not made available before us. Hence, we restore this issue to CIT (A) for a fresh decision after examining the lease agreements in the light of this judgment of Hon'ble apex court rendered in the case of ICDS Ltd. Vs. CIT and of Hon'ble Karnataka High Court rendered in the case of Manipal Finance Corporation Ltd. Vs. ACIT (Supra). Ground No. 3 in ITA No. 240 & 241/Bang/2018 is allowed for statistical purposes. 9. It was submitted by the learned AR of the assessee that Ground No. 3 in A. Y. 1998-99 in ITA No. 242/Bang/2018 is regarding disallowance of depreciation on assets leased to Khatima Fibers Ltd. Rs. 51,01,950/- and to M/s Mohan Mekin Ltd. Rs. 19.98 Lacs. He submitted that the disallowance was made on this basis that out of total cost of the assets, the assessee has financed only a part amount. He poin....
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....supplier or to the lessee. When full cost is not borne by the assessee, how the assessee can claim ownership and claim depreciation. Therefore, we find no merit in this ground and it is rejected. 11. Regarding ITA No. 243/Bang/2018 for A. Y. 1999-2000, it was agreed by both sides that the issue involved in this appeal is same as in ITA No. 239/Bang/2018 for A. Y. 1995-96 and this issue is about allowability of depreciation on lease transactions. In this regard, we have already held in Para No. 5 above that the depreciation is not allowable in view of earlier tribunal order in assessee's own case for A. Ys. 1992-93 to 1994-95 in ITA Nos. 17, 48 & 87/Bang/2000 dated 06.10.2003, copy available on pages 23 to 29 of the paper book in which the tribunal held that the lease transaction is sham because the assessee on the one hand pays the value of machinery and at the same time receives the equivalent amount as deposit and thus, there is no out flow of fund so as to validly make payment for purchase price. It is seen that no difference in facts is pointed out in the present year or in any other year. When, the lease transaction itself is sham as per the earlier tribunal order in assess....
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....sees to file it properly with covering letters as the Department may not be readily finding the back records. b) However, situation changed drastically when the department introduced the system of "scrutiny assessment" as well as adverse market condition for NBFC." The lessees who took the fixed assets on lease from the assessee did not pay the lease rent properly and the assessee had to recourse to recover proceedings through court. When the borrowers refused to pay the amount borrowed as per terms of loan, the assessee had to approach the court and get a decree. The amount due was recovered in instalments from judgement debtors or in one lump sum. The TDS certificates (16A) would have been issued for all the years in subsequent years and credit for the Form 16A would have been in the subsequent years as per system followed and TDS claim would have been made in the later year. The A.O. used to hold the Form 16A so filed as defective Form 16A and never gave credit for the same. c) In the assessment for Asst Year 2001-02 for example, credit for TDS of Rs. 73,97,954 was refused on the ground that these are relating to earlier years. Copy of the intimation is enclose....
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....that the income reflected in the certificate has not been offered to tax in Asst Year 2001-02 in which the TDS was claimed, without carrying out assessment as required under Section 143(3). Having concluded without any proof in proceeding u/s 143(1), that the income reflected in the certificate has been offered to tax by the appellant in an earlier assessment year, he is bound to suo moto grant credit of the tax for that earlier assessment year. He erred in rejecting the certificates as "defective". If further evidence was required from the appellant of offering the income to tax in earlier assessment year he could very well have asked for the same. Hence refusing to grant interest on the ground that the delay is attributable to the appellant is a grave injustice as interest on refund under Section 244A is mandatory. The appellant could not claim the TDS in the relevant year because of the delay in the deductor issuing the certificates and same was claimed in the year in which certificates were received from the deductors. The provision for excluding period of delay attributable to the deductor has been introduced in subsection (2) of Section244A only from Asst year 2017-18 and can....
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....me receives the equivalent amount as deposit and thus, there is no out flow of fund so as to validly make payment for purchase price. It is seen that no difference in facts is pointed out in the present year or in any other year. When, the lease transaction itself is sham as per the earlier tribunal order in assessee's own case under similar facts, no other argument or judgment cited in the written submissions reproduced above is required to be considered. Hence, we decline to interfere in the orders of the lower authorities on this issue in all years including the present year. 15. As per a separate written submission filed by the learned AR of the assessee on 10.08.2019 as per the leave granted by the bench, it is submitted that there are two additional issues in some appeals. As per the same, one issue is this that amounts forfeited by the depositors in terms of the scheme approved by the High Court of Karnataka cannot be subjected to tax and it is stated in written submissions that this issue is in A. Y. 2006-07 to 2008-09. Second issue is stated to be about MAT credit in A. Y. 2008-09. For ready reference, these written submissions are reproduced hereinbelow:- "Wri....
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....S Ltd in 283 ITR 310 (Kar) held that the amount taken to Profit & Loss Account was a capital receipt and not chargeable to tax. In the case of CIT vs Manipal Finance Corporation Ltd. [2015] 53 Taxmann.com 313 the Honourable High Court in para 11 of the order has held as under: "11. In the instant case, no-doubt the assessee received the deposits. The deposits were repayable with interest. The assessee sustained loss in the business. They framed a scheme of compromise/arrangement. During the course of such a claim before the High Court, the assessee entered into an arrangement with the depositors who were willing to receive a portion of the amount deposited by them towards settlement of their claim. Therefore, those depositors were paid a portion of the money which they had deposited. With such payment, the entire liability to pay the amount received stood extinguished. However, by such extinguishment of the liability, the assessee did not receive any amount either by forfeiture or by discount and it is a case of sheer inability to pay the amount received by way of deposits. Under those circumstances, though such rebate or remission has benefitted the assessee insofar as di....
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....tment should not take advantage of an assessee's ignorance to collect more tax out of him than is due from him. 5.4.10 The Manipal Finance Corporation Ltd decision is not applicable to the present case as the appellant itself treated the difference between the face value of the deposits and the amount paid in final settlement as revenue receipts and income by filing revised computation for AY 2006-07, AY 2007-08 and AY 2008-09. The appellant also transferred Rs. 1134.58 lakhs (pertaining to A.Y.s 2006- 07, 2007-08, 2008-09 and A.Y.2009-10) from capital reserve to P & L A/c., as mentioned in para-5.4.5 above. In the case of Manipal Finance Corporation Ltd the difference between the face value of the deposits and the amount paid in final settlement was treated as capital receipts by the taxpayer. 5.4.11 The AR's reliance on the Board circular is without any basis as the change in accounting policy was made consciously over a period of time after thoroughly considering the nature of receipts, ascertaining its real income position with the books of accounts. The reliance on CBDT circular at this juncture is only abuse of CBDT circular which was meant to help t....