TaxTMI 
TaxTMI 
2001 (4) TMI 169
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....Rs. 25 lakhs under section 69C of the Income-tax Act, 1961. (ii) Without prejudice to the above, the learned CIT (A) further erred in holding that addition of alleged payment of Rs. 25 lakhs in cash to M/s. National Plastics Industries Ltd. for procuring large order should be made under section 69C of the Income-tax Act and no deduction of the said amount which is paid on account of interest against excess advance and cash discount should be allowed under section 37(1) of the Income-tax Act. 4. (i) The learned CIT (A) further erred in confirming the action of the Assessing Officer in computing undisclosed income on account of lease transactions with Punjab State Electricity Board (PSEB) and Rajasthan State Electricity Board (RSEB) at Rs. 11,64,89,975. (ii) The learned CIT (A) further erred in holding that the lease transactions with Punjab State Electricity Board (PSEB) and Rajasthan State Electricity Board (RSEB) were of the nature of loan transactions with the assets purchased and leased back are mere security and the appellant was never the real owner of the assets. (iii) The learned CIT (A) further erred in heavily relying on the Power of Attorney issued in favour o....
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.... in holding that the appellant company is liable for interest under section 158BFA(1) of the Income-tax Act, 1961. 6. The learned CIT(A) further erred in holding that surcharge is chargeable on the tax rate of 60 per cent on the undisclosed income computed for the block period. 7. The appellant-company craves leave to added to, alter or amend the above grounds, which are without prejudice to each other, at the time of hearing." 3. The assessee is engaged in the business of Injection Moulding Machinery. A survey was conducted under section 133A(1) of the Income-tax Act 1961 on 26-9-1997 at the corporate headquarters and the factory of the assessee-company at Thane. It is the case of the revenue that simultaneously a search was also conducted under section 132 of the Act at the address of the Chairman of the assessee, viz., 88C, Old Prabhadevi Road, Mumbai. During the course of the search at 88C, Old Prabhadevi Road, certain documents were seized showing the assessee's transactions with M/s. National Plastics Industries Ltd. and other state of affairs of the assessee-company. On enquiry, it was submitted before the Assessing Officer that the transactions are duly accorded in....
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.... advance as discount too. Approx. of Rs. 8 lacs as interest and 17 lacs as further discount (2.2596). We will have to recover approx. Rs 10 lacs (as discount adjustment)" The Assessing Officer concluded that the payment of Rs. 25 lacs was made to M/s. National Plastics Industries Ltd., which included Rs. 8 lacs as interest and Rs. 17 lacs as further discount at the rate 2.25%. The Assessing Officer further noted that a recovery of Rs. 10 lacs would have to be made as discount adjustment because of cancellation of order for three machines. It is pointed out by the Assessing Officer that page 2 reveals similar noting dated 1-10-1996 on the same subject as is mentioned in page No. 1, though containing additional information. This contains information about the details of six machines proposed to be supplied to M/s. National Plastics Industries Ltd., an additional column of cash discount at the rate of 2.25 per cent is also mentioned. The total discount shown in respect of the six machines is mentioned as Rs. 17 lacs. On the lower portion of the page the fresh status as on 28-9-1996 is noted in addition to the notings, which were on page No. 1 as under: "Status :(28/9/96) Cust....
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.... industry was also aping a liquidity crunch, the company was facing problems. National Plastics offered to give us Rs. 2 crores as advancer For this high advancer company offered them a cash discount. However, owing to poor market conditions, National Plastics did not honour their commitment and did not lift all the machines. In fact they lifted only 2 machines finally. The cost of these machines was adjusted against the advance and the balances the amount is lying as credit balance in our account. As they did not honour their commitment, our company also did not offer the cash discount to them." 5. During the course of assessment proceedings, the assessee-company was again questioned in respect of these documents and it was submitted by the assessee that there are no entries of either the cash discount or any other payment made or received in its books of account, apart from the advance of Rs. 2 crores received and the sale of only two machines, which had been delivered as per the notes on these papers. It was put to the assessee that in view of the noting showing that the sum of Rs. 25 lakhs had already been received and because of the proposed cancellation, certain sums were ....
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....d machine delivered to them and cancelled the order for the three remaining machines. The regular discount allowed to the party is of 20 per cent from the list price which is the general practice followed by the assessee-company to grant the discount ranging between 15 to 20 per cent depending on the business relation with the party, quantity and value of the order as well as the amount of advance received from the party. The assessee-company does not have any details in respect of remarks and status as on 28-9-1996 given on page No. 2 of the paper. The two concerned persons namely Shri R. Venkatachalam and Shri Alok Tibrewala have already left the services of the assessee-company long back and, therefore, the assessee-company is unable to explain these remarks. We would, therefore, submit that whatever transactions taken place with National Plastics Industries Ltd. are duly recorded in the books of the account of the assessee-company and they are duly confirmed by National Plastics Industries Ltd." The Assessing Officer considered the contentions of the assessee vis-a-vis the documents found at the time of search and survey and came to the conclusion that the assessee could not....
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....ses incurred which are not accounted for by the assessee-company in its books of account. It is strange to digest that a businessman will pay a sum of Rs. 25 lakhs as discount for getting large order during the course of business; but will not record the same in his books of account as if the same is recorded in the books of account, it will be allowed as business expenditure. 8. Without prejudice to the above, it is submitted that if at all the appellant-company had made the alleged payment of Rs. 25 lakhs in cash to National Plastics, which is not recorded in its books of account, the same should be considered as commission paid for getting large order of machines as held by the Assessing Officer and, therefore, the same should be allowed as deduction on account of commission paid during the course of the business. Since the payment of the commission is not made from books of account, the deduction of the same shall set off against the addition made as undisclosed income. 9. We rely on the decision of the Supreme Court in the case of Kishinchand Chellaram 125 ITR 713. In this case, the assessee had an office in Bombay and one in Madras. On receiving information that a sum o....
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....In the M.K. Mathivathanan v. ITO [1989] 31 ITD 114 (Mad.) (iii) In the case of Nishant Housing Development (P.) Ltd. v. Asstt. CIT [1995] 52 ITD 103 (Pat.) (iv) In the case of Sharma Associates v. Asstt. CIT [1995] 55 ITD 171 (Pune) (TM). After considering the arguments of the learned counsel for the assessee and the case-laws relied in this behalf, as mentioned above, the CIT(A) concurred with the view taken by the Assessing Officer for the detailed reasons given at pages 13 to 17 of his order. He has further mentioned that the assessee is not entitled to any deduction under section 37(1) of the Act also. 7. The learned counsel for the assessee, in brief submitted that during the course of survey action it was clearly stated in the statement recorded of Shri Ganesh Melatur, Dy. General Manager (Finance) and Shri Shantanu Aditya, Executive Director, that these papers pertained to the earlier period when the Executive Director was one Shri R. Venkatachalam and the Dy. General Manager (Sales) was one Shri Alok Tibrewala and since both of them are no longer in the service of the assessee-company, as they have already left the employment of the assessee-company, they are no....
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....he assessee under section 69C of the Act, since it is an expenditure deduction of the same should be allowed to the assessee under section 37(1) of the Act. It is pointed out that it is clear from these two papers that the alleged payment was made to M/s. National Plastics Industries Ltd. an account of cash discount and interest on the advances received on large order. Reliance was also placed on the Tribunal decision in the case of S.M. Wadia; M K. Mathivathanan's case; Nishant Housing Development (P.) Ltd.'s case and Sharma Associates case. It is also that the proviso to section 69C of the Act was inserted by the Finance Act, 1998, which is not applicable to the facts of the present case because the said proviso was brought on the statute bock with effect from 1-4-1999. The Circular No. 772 dated 23-12-1998 clearly states that unexplained expenditure is treated as income under section 69C. But there is no corresponding provision for disallowance of such expenditure as the taxpayers are claiming deduction of such expenses under section 37(1) of the Act and in order to curb this practice the amendment is brought on the statute bock from assessment year 1999-2000 and subsequent year....
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....te of 2.25 per cent. This discount was for the purchase of six machines and as per the papers found, part of the money, given on account of discount, (approximately Rs. 10 lakhs) was to be recovered as discount adjustment, since M/s. National Plastics Industries Ltd. had cancelled order for three machines and had not lifted the third machine manufactured by the assessee. As per the documents found, the special payment/discount given to M/s. National Plastics Industries Ltd. for the 6 machines had to be recovered in respect of 4 machines, which were either cancelled or not lifted by M/s. National Plastics Industries Ltd. The basic argument of the learned counsel for the assessee is that Shri R. Venkatachalam, the then Executive Director, and Shri Alok Tibrewala, the then Dy. General Manager (Sales), were not examined, since they have left the service of the assessee and the statements recorded of Shri Ganesh Melatur and Shri Shantanu Aditya clearly state that these papers pertained to earlier period when they were not in the service of the assessee-company. Under these circumstances it was argued that no opportunity was given to the assessee to controvert the documents or to addu....
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....on 69A. Applying the said principle laid down by the Hon'ble Supreme Court, we are of the opinion that the transactions noted in the loose papers clearly stipulate that the assessee had made the payment of Rs. 25 lakhs to M/s. National Plastics Industries Ltd. in cash out of the books against the expected orders f or six machines to be placed on the assessee and the receipt of Rs. 2 crores as advance by the assessee, Rs. 8 lakhs as interest and Rs. 17 lakhs as cash discount. 10. The next question that arises is that if the addition is construed as deemed income of the assessee under section 69C of the Act, whether the deduction of the same should be allowed en the basis of the same papers, under section 37(1) of the Act as the expenditure had been found to have been incurred by the assessee in the form of cash discount and interest. Here the argument of the learned Departmental Representative was that the proviso to section 69C of the Act was brought en the statute book, which could be considered to be retrospective in nature. So far as this contention of the Departmental Representative is concerned, we would like to mention that the explanation to the section generally clarifie....
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....oard (PSEB) and Rajasthan State Electricity Board (RSEB) amounting to Rs. 11,64,89,975. During the course of survey, lease agreements entered into by the assessee with PSEB and RSEB were found and inventorised as Annexure 'A' to the Survey Report. Copies of these documents were also mentioned at serial Nos. 6 to 9 of Annexure 'B' to the Survey Report. The Assessing Officer examined these lease agreements closely vis-a-vis the terms and status of the agreements entered into between the assessee and the PSEB and RSEB. The Assessing Officer conducted enquiries by the Investigation Wing of the deportment with both these Electricity Boards. The Assessing Officer collected information and after regularising the terms and the surrounding circumstances, it was put to the assessee that the lease transactions entered into by it with these Electricity Boards were, in fact, in the nature of financial arrangements/loan transactions; that the assets alleged to have been purchased and leased back, acting merely as a security and that the assessee never owned these assets. It was also brought to the notice of the assessee that in view of these circumstances, the depreciation claimed by it in respe....
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....sed equipment having the right to claim depredation on the assets leased. Therefore, the depredation claimed by the assessee en these assets was disallowed. 12. This was challenged before the CIT(A). The CIT(A), in fact incorporated the order of the Assessing Officer as well as the submissions of the assessee. A tabular chart was also furnished before the CIT(A). For the sake of conveniences the same is reproduced below: -------------------------------------------------------------------------------------------- Sr. Observations of A.0. Contention of Appellant-Company No. -------------------------------------------------------------------------------------------- 1 2 3 --------------------------------....
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....assessee. The terms of the lease agreement, found by the Assessing Officer to be contrary to the claim of absolute ownership were intended to protect the &nbs....
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.... and the risks were passed on to the the purchasers of the equipment assessee after purchase of the assets. from SEBs had not assumed any The lease agreement casts certain duties risks of ownership. In fact, all and liabilities on the lessee for use of the losses in respect of the said equipment as a bailee of the equipment equipment were to be borne the which is as per the second proviso to lessee. ....
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.... as per the lease agreement. 4. Owner must give warranty for the At the time of purchase of the asset it fitness, suitability, etc. of the was the Electricity Boards who gave equipments In the instant case, warranty for the fitness, suitability), etc. however, the lease agreements of the equipment as they were the stipulate that the lessor does not owners at that point of sale. Immediately make any representation or &nb....
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....d with regard to the fitness, suitability, etc. of the equipment leased. 5. Under section 151 of the Indian A lease is a contract of bailment and the Contract Act, the hirer is only parties to the contract are free to bind responsible for taking as much themselves in respect of rent, maintenance, care of the....
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....p; 151. It will be appreciated that the lease agree ment in this case is a special contract between the bailor and the bailee and &n....
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.... sell these equipments to any intending purchaser at a price not less than minimum mentioned in the power of attorney on the &n....
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....bsp; RSEB & en page 3 for PSEB). It is reiter- recover all amounts due under ated on page 13 for RSEB & in clause the lease agreement in case of any 7(a) for PSEB that in spite of lease agree default by the lessee. The lessor ments, the appellant continues to remain had not taken any risk of the owner of the assets. If there are ownership but had reserved the no express stipulations as regards taking right to recoup the full back of the assets, it could not be argued investment. &....
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....; breach of terms of the lease by the lessee. 4. In order to construe the transactions The substance and essence of the agree one has to look to the ment will clearly show that it is a genuine substance or essence of it rather lease transaction. The parties to the trans- than its form. action have acted accordingly and the othe....
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....bsp; over and above the normal right of re- possession given under the Contract Act. WHETHER THE TRANSACTIONS WERE LOANS 1 . The substance of the arrange- A sale and lease back transaction con ment is one of lending against templates sale of assets by a person using security of fixed assets: the asset and in need of finance to a 2. SEBs were looking for availing of person who is willing to finance by pur- finance at cheap rates and since &n....
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....; equipment and thus is fully se cured; (c) The person willing to finance is able to carn a reasonable rate of return consequent to the lease of &nbs....
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....d lease back, identifying the assets qualifying obtained valuation report, negotiated the for 100 per cent depreciation terms and purchased the aforesaid valuing them arbitrarily to match assets and then entered into the lease the amount financed by each agreement. Accordingly, it will be appre- lessor. ciated that the said agreements were &n....
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....ore, confirmed the disallowance. 13. The learned counsel for the assessee submitted that Explanation 4A to section 43(1), which is introduced with effect from 1-10-1996, recognizes the sale and lease back transactions. The position becomes obvious from the Finance Minister's Budget Speech while introducing Finance (No. 2) Bill, 1996, in which it was stated as under: "The practice of sale and lease back of the assets results in passing of very high depreciation to the leasing concerns. This practice needs to be curbed, Hence, propose to provide in the Income-tax Act that in case of sale and lease back transaction, the WDV of the asset, in the hands of the lessee, who was the previous owner will be treated as cost in the hands of the lessor. The measure while not effecting bona fide transaction will prevent loss making concerns from indulging in unhealthy trade off of depreciations" (para 95 of the speech). Thus it is clear that even prior to the amendment the lessors were entitled to depreciation on leased assets. The only difference that was brought in this amendment was that the cost of acquisition in the hands of the lessor was restricted with effect from 1-10-1996 to the W....
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....anation 3 to section 43 is not applicable in the case of the assessee, as the purchase price was paid as per the valuation reports obtained from the registered valuer, which is not challenged. Explanation 4A to section 43, which came into force with effect from 1-10-1996, is not applicable and, therefore, the transactions entered into by the assessee are genuine, which had been confirmed by the lessee and the plant and machineries were identified and were in existences. 15. The learned counsel for the assessee further relied on the Circular No. 2 of 2001 dated 9-2-2001, which also mentioned the criteria laid down in Instruction No. 1978 dated 31-12-1999 regarding the examination of sale and lease back transaction in view of the principle laid down by the Supreme Court in the case of McDowell & Co. Ltd. v. CTO [1985] 154 ITR 148. This circular also mentions that though the new accounting standard pronounced by the Institute of Chartered Accountants of India makes distinction between operating lease and finance lease and also requires capitalisation of assets by the lessee in financial lease transaction, but directed that the accounting standard will have no implication on the all....
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....tion was also rejected by the Supreme Court on 11-5-1999. 17. The learned Departmental Representative, on the other hand, relied on the orders of the revenue authorities. 18. We have considered the rival submissions and have gone through the material available on record. We find that Explanation 4A to section 43(1) was introduced with effect from 1-10-1996 with a view to curb the practice of sale and lease back of the assets resulting in passing of very high depreciation to the leasing concerns. This amendment was brought into the statute book to restrict the depredation in the hands of the lessor with effect from 1-10-1996 on the written down value in the hands of the previous owner, i.e., the lessee. So that amendment by way of Explanation 4A to section 43(1) has accepted the principle of sale and lease back of assets to restrict the depreciation from cost of acquisition to written down value in the hands of the previous owner. The CBDT, vide its Instruction No. 1978 dated 31-12-1999 has pointed out that it has come to its notice that in some of the finance lease agreements, lease assets had never existed or purchase price for the lease assets came back to the lessor by dis....
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....ned transactions entered into by the assessee-company. It will be pertinent to mention here that the Assessing Officer has recorded the statement of ail concerned authorities of the two Electricity Boards, who have confirmed the existence of sale and lease back of assets. It is also found that no depredation had been claimed by PSEB and RSEB on these assets. Under these circumstances it cannot be treated as a sham transaction of lease f or the purpose of claiming depreciation. We find that the Tribunal has considered the question of granting depreciation in sale and lease back transaction in the case of Unimed Technologies Ltd. That was a case where the assessee has purchased an asset on hire purchase agreement f or which consideration was paid by ITC to RSEB on the execution of the agreement for sale. The Tribunal has held that unless it is established that the sale and lease back transaction was not genuine and it was found that the lease agreement is at arms length with the Government of Rajasthan, the claim for depreciation cannot be disallowed. Similar view was expressed by the Mumbai Bench of the Tribunal in the case of Coronet Investments (P.) Ltd., wherein the Tribunal, fol....
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....rved on the assessee on 14-10-1997 as would be clear from the copy of the notice placed at page 27 of the paperbook. If we calculate 45 days from 14-10-1997, the period of 45 days will expire on 28-11-1997. The assessee has filed the return on 28-11-1997 itself. Therefore, from this factual aspect of the matter, the return filed by the assessee is within the time and, therefore, the assessee is not liable for any interest under section 158BFA of the Act. The order of the CIT(A) on this issue is set aside and the Assessing Officer is directed to delete the interest. This ground of the assessee is accordingly allowed. 21. The next grievance of the assessee is that the CIT(A) erred in holding that surcharge is leviable on the tax rate of 60 per cent on the undisclosed income computed for the block period. The Assessing Officer has charged income-tax at the rate of 60 per cent and surcharge also at the rate of 7.5 per cent. As per the provisions of section 113, tax on the undisclosed income for the block period is chargeable at the rate of 60 per cent. The CIT(A) was of the view that the first proviso to section 2 of the Finance Act, 1997 provides for levy of surcharge on the amount....