L & T FINANCE LTD, MUMBAI V. DCIT CIR 2(20, MUMBAI

ITA 4345/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8325 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-11-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 26-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP
• Assessee Lawyers: HEENA DOSHI
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI SANJAY ARORA (ACCOUNTANT MEMBER) ITA NOS.4345 & 4346/MUM/2010 ASSESSMENT YEARS: 1998-99 AND 1999-2000 L&T FINANCE LIMITED, TAXATION DEPARTMENT, L&T HOUSE, N.M.MARG, BALLARD ESTATE, MUMBAI-01 PA NO.AAACL 8668 G DCIT, CIRCLE 2(2), MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : MS HEENA DOSHI RESPONDENT BY: SHRI AMARDEEP DATE OF HEARING: 12.11.2012 DATE OF PRONOUNCEMENT: 12 . 11.2012 ORDER PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THESE TWO APPEALS FOR ASSESS MENT YEARS 1998-99 AND 1999-2000, RESPECTIVELY, AGAINST SEPARATE ORDERS D ATED 12.3.2010 AND 18.3.2010 OF LD CIT(A). COMMON GROUND RAISED IN BOTH THE APPEALS R EAD AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, LD CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF DEPRE CIATION MADE BY THE AO IN RESPECT OF CERTAIN ASSETS GIVEN UNDER SALE A ND LEASE BACK BASIS BY TREATING THE LEASE TRANSACTIONS AS FINANCE TRANSACT ION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF DEPRECIATIO N ON MOTOR CARS GIVEN ON FINANCE LEASE BY TREATING THE LEASE TRANSACTION AS FINANCE TRANSACTION. 2. AT THE TIME OF HEARING, LD REPRESENTATIVES FAIRL Y CONCEDED THAT THE ISSUE UNDER CONSIDERATION IN BOTH THE APPEALS IS COVERED AGAINS T THE ASSESSEE BY THE ORDER DATED 9.5.2012 OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN A SSESSEES OWN CASE FOR ASSESSMENT YEARS 1995-96, 1996-97 AND 1997-98 IN I.T.A. NOS.25 74,2575 & 2576/M/2010, WHEREIN, THE TRIBUNAL FOLLOWED THE DECISION OF ITAT SPECIAL BENCH IN THE CASE OF M/S. INDUSIND BANK LTD VS. ACIT PASSED ON 14.3.2012, HOLDING THAT IN THE CASE OF FINANCE LEASE DEPRECIATION IS NOT ADMISSIBLE TO THE LESSOR WHO IS SIMPLY A NOMINAL AND SYMBOLIC OWNER ITA NOS.4345 & 4346/MUM/2010 ASSESSMENT YEARS: 1998-99 AND 1999-2000 2 OF THE ASSET, WHEREAS THE REAL OWNER WHO BEARS ALL THE RISKS AND REWARDS INCIDENTAL TO THE OWNERSHIP IS THE LESSEE. IT HAS THUS BEEN HELD THAT IT IS ONLY THE LESSEE WHO IS THE ACTUAL AND REAL OWNER OF THE ASSET IN CASE OF A FIN ANCE LEASE, WHO IS EVENTUALLY ENTITLED TO DEPRECIATION AND NOT THE LESSOR. COPY OF THE DEC ISION OF ITAT DT.9.5.2012 IS PLACED ON RECORD. IN VIEW OF ABOVE, RESPECTFULLY FOLLOWING T HE DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE (SUPRA), WE REJECT THE GROUND O F APPEAL TAKEN BY ASSESSEE BY UPHOLDING THE ORDERS OF LD CIT(A) FOR ASSESSMENT YE ARS 1998-99 AND 1999-2000. 3. IN THE RESULT, BOTH APPEALS FILED BY ASSESSEE AR E DISMISSED. PRONOUNCED IN THE OPEN COURT ON 12 TH NOVEMBER, 2012 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 12 TH NOVEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),5, MUMBAI 4. COMMISSIONER OF INCOME TAX, 2 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI