Gujarat Power Corporation Ltd., Gandhinagar V. The AddlCIT.,CNR Circle, Gandhinagar

MA 15/AHD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0384 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-07-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 01-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS SRDR
• Keywords: Depreciation
• Section: 11

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , , , , ! ' # ! ' # ! ' # ! ' # $ %& $ %& $ %& $ %&, , , , ' ' ' ' ' ' ' ' BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND KUL BHARAT, JUDICIAL MEMBER) MA NO.15/AHD/2013 IN ITA NO.2943/AHD/2006 [ASSTT. YEAR : 2003-2004] MA NO.16/AHD/2013 IN ITA NO.1338/AHD/2013 [ASSTT. YEAR : 2004-2005] MA NO.17/AHD/2013 IN ITA NO.3508/AHD/2008 [ASSTT. YEAR : 2005-2006] MA NO.18/AHD/2013 IN ITA NO.3508/AHD/2009 [ASSTT. YEAR : 2006-2007] GUJARAT POWER CORPORATION LTD. BLOCK NO.8, 6 TH FLOOR UDHYOG BHAVAN, SECTOR 11 GANDHINAGAR. ( /VS. ADDL. ACIT GANDHINAGAR RANGE GANDHINAGAR. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ( .& / 0 / ASSESSEE BY : SHRI SANJAY R. SHAH 2' / 0 / REVENUE BY : SHRI K.C. MATHEWS, SR.DR $(3 / &4!/ DATE OF HEARING : 19 TH JULY, 2013 56 / &4!/ DATE OF PRONOUNCEMENT : 31-07-2013 7 / O R D E R GUJARAT POWER CORPORATION LTD. VS. ACIT (FOUR MAS) -2- PER A.K. GARODIA, ACCOUNTANT MEMBER: ALL THESE MAS. ARE FILED BY THE ASSESSEE. 2. IT HAS BEEN CONTENDED BY THE ASSESSEE IN THESE M AS. THAT WHILE ARGUING THE APPEALS, IT WAS CONTENDED BY THE LEARNE D AR OF THE ASSESSEE THAT, THE DECISION OF THE SPECIAL BENCH, R ENDERED IN THE CASE OF INDUSIND BANK LTD. VS. ACIT, FOLLOWED BY THE TRI BUNAL IN THE IMPUGNED ORDER, IS COVERING THE MAIN ISSUE IN FAVOU R OF THE ASSESSEE, AND AS PER THIS DECISION, IN THE CASE OF SALE AND L EASEBACK TRANSACTIONS, THE DEPRECIATION IS ALLOWABLE, BECAUSE, THERE IS DI STINCTION BETWEEN SALE & LEASE BACK TRANSACTION AND FINANCIAL LEASE T RANSACTION. IT WAS SUBMITTED IN THE MA THAT THE TRIBUNAL HAS MADE AN O BSERVATION IN THE IMPUGNED ORDER THAT NO SERIOUS ARGUMENT WAS MADE BY THE ASSESSEE REGARDING ALLOWABILITY OF DEDUCTION ON ACCOUNT OF D EPRECIATION ON LEASED ASSETS, AND HENCE, THIS GROUND OF THE ASSESS EE IS REJECTED IN ALL THREE YEARS. IT IS FURTHER SUBMITTED IN THE MA THA T, THEREAFTER, THE TRIBUNAL HAS DECIDED AN ALTERNATE CLAIM OF THE ASSE SSEE IN FAVOUR OF ASSESSEE THAT PRINCIPAL PORTION OF THE LEASE RENT H AS TO BE EXCLUDED FROM THE LEASE RENTAL INCOME. IT IS SUBMITTED IN T HE MA THAT, THIS IS A MISTAKE APPARENT IN THE TRIBUNAL ORDER, WHICH SHOUL D BE RECTIFIED, AND IT SHOULD HELD THAT, THE ASSESSEE IS ELIGIBLE FOR D EPRECIATION, AND AS A CONSEQUENCE THEREOF, IT SHOULD ALSO BE HELD THAT PR INCIPAL PORTION OF LEASE RENTAL IS NOT REQUIRED TO BE EXCLUDED FROM TH E INCOME OF THE ASSESSEE. 3. IN THE COURSE OF HEARING BEFORE US, IT WAS POINT ED OUT BY THE BENCH TO THE LEARNED AR OF THE ASSESSEE THAT, TO EX AMINE THE VERACITY TO THESE CONTENTIONS IN THE MA THAT, THIS OBSERVATI ON OF THE TRIBUNAL IS GUJARAT POWER CORPORATION LTD. VS. ACIT (FOUR MAS) -3- NOT CORRECT THAT, NO SERIOUS ARGUMENT WAS MADE BY T HE ASSESSEE, REGARDING THE ALLOWABILITY OF DEDUCTION ON ACCOUNT OF DEPRECIATION ON LEASE ASSETS, THE LOG-BOOK OF THE MEMBERS ON THE DA TE OF HEARING OF THE APPEAL HAS TO BE SEEN, BUT IN REPLY, IT WAS SUBMITT ED BY THE LEARNED AR OF THE ASSESSEE THAT, IT IS NOT NECESSARY TO SEE TH E LOG BOOK, AND IT IS NOT REQUIRED AND THESE CONTENTIONS CAN BE VERY MUCH VER IFIED FROM PAGES 142 AND 143 OF THE PAPER BOOK, WHICH CONTAIN THE RE LEVANT PORTIONS OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL I .E. PARA 6.7. HE HAS DRAWN OUR ATTENTION TO PARA 16 TO 19 OF THE TRIBUNA L ORDER AT PAGE NOS.10 TO 12 OF THE IMPUGNED ORDER OF THE TRIBUNAL, AND IT WAS SUBMITTED BY HIM THAT IN PARA 18, THIS OBSERVATION OF THE TRIBUNAL IS THERE THAT NO SERIOUS ARGUMENT WAS MADE BEFORE US R EGARDING ALLOWABILITY OF DEDUCTION ON ACCOUNT OF DEPRECIATIO N ON LEASE ASSETS, AND HENCE, THIS GROUND OF THE ASSESSEE WAS REJECTED IN ALL THESE YEARS. HE SUBMITTED THAT THIS OBSERVATION OF THE TRIBUNAL IS FACTUALLY INCORRECT. AS AGAINST THESE, THE LEARNED DR OF THE REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF T HE TRIBUNAL, BECAUSE A CLEAR FINDING IS GIVEN BY THE TRIBUNAL IN PARA 18 OF THE IMPUGNED ORDER THAT NO SERIOUS ARGUMENT WAS MADE BY THE ASSE SSEE REGARDING ALLOWABILTY OF DEPRECIATION. 4. WE HAVE CONSIDERED RIVAL SUBMISSION. WE FIND TH AT IN PARA 18 OF THE TRIBUNAL ORDER, A CLEAR FINDING IS GIVEN BY THE TRIBUNAL THAT NO SERIOUS ARGUMENT WAS MADE BY THE AR OF THE ASSESSEE REGARDING ALLOWABILITY OF DEPRECIATION ON LEASED ASSETS. IT WAS POINTED OUT BY THE BENCH TO THE LEARNED AR OF THE ASSESSEE, AT THE TIME OF HEARING THAT, IF THE ASSESSEE IS CONTENDING THAT THIS OBSER VATION OF THE TRIBUNAL IS NOT CORRECT, THEN IT IS NECESSARY TO EXAMINE THE LOG BOOK OF THE MEMBERS ON THE DATE OF HEARING OF THE CONCERNED APP EALS. BUT THE GUJARAT POWER CORPORATION LTD. VS. ACIT (FOUR MAS) -4- LEARNED AR INSISTED ON THE HEARING OF THESE MAS. WI THOUT LOOKING INTO THE LOG BOOK , AND IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESSEE THAT VERACITY OF THESE CONTENTIONS CAN BE SEEN FROM PAGES FROM 142 AND 143 OF THE PAPER BOOK. THEREFORE, WE DECIDE TH ESE MAS WITHOUT LOOKING INTO THE LOG BOOK OF THE DATE ON WHICH THES E APPEALS WERE HEARD. IN OUR CONSIDERED OPINION, WITHOUT LOOKING INTO THE LOG BOOK, IT CANNOT BE ACCEPTED THAT THESE OBSERVATIONS OF THE T RIBUNAL IN PARA 18 OF THE IMPUGNED ORDER IS NOT FACTUALLY CORRECT. RE GARDING PAGE NOS.142 AND 143 OF THE PAPER BOOK NO.3, AND PARTICU LARLY, PARA 6.7 OF THE TRIBUNAL ORDER, APPEARING ON THESE PAGES, WE FI ND THAT THE SAME IS REGARDING THE OBSERVATIONS OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF INDUSIND BANK, BUT EVEN IF THE SAME ARE APP EARING IN THE PAPER BOOK, AS PER RULE 18(6) OF THE APPELLATE TRIBUNAL R ULE 1963, ONLY THOSE DOCUMENTS WHICH ARE REFERRED TO BY THE PARTIE S, DURING THE COURSE OF ARGUMENTS SHALL ALONE BE TREATED AS PART OF THE RECORD OF THE TRIBUNAL. ADMITTEDLY, RELIANCE WAS PLACED BY THE A R OF THE ASSESSEE ON THIS DECISION OF THE SPECIAL BENCH RENDERED IN T HE CASE OF INDUSIND BANK LTD. (SUPRA), AND THE APPEALS WERE DECIDED BY FOLLOWING THE DECISION, BUT NOW, THE ASSESSEE IS CONTENDING THAT THE ATTENTION OF THE BENCH WAS DRAWN TO THIS PARTICULAR PARA OF THIS DEC ISION OF THE SPECIAL BENCH OF THE TRIBUNAL, AND WHEN THE BENCH WANTED TO CHECK ABOUT THE VERACITY OF THESE CONTENTIONS OF THE LEARNED AR OF THE ASSESSEE, BY REFERRING TO THE LOG BOOK OF THE MEMBERS, ON THE DA TE OF HEARING OF THE APPEALS, IT WAS OBJECTED BY THE LEARNED AR OF THE A SSESSEE, AND IT WAS SUBMITTED BY HIM THAT, NO SUCH REFERENCE TO THE LOG BOOK IS REQUIRED. IN THE ABSENCE OF REFERENCE TO LOG BOOK OF THE MEMB ERS, ON THE DATE OF HEARING OF THE APPEALS, CONTENTIONS RAISED BY THE L EARNED AR OF THE ASSESSEE THAT ATTENTION OF THE BENCH WAS DRAWN TO T HIS PARA OF THIS GUJARAT POWER CORPORATION LTD. VS. ACIT (FOUR MAS) -5- DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL, IS N OT ACCEPTABLE, PARTICULARLY, WHEN A CLEAR FINDING IS GIVEN BY THE TRIBUNAL, IN PARA 18 OF THE TRIBUNAL ORDER THAT NO SERIOUS ARGUMENT WAS MADE BY THE ASSESSEE REGARDING ALLOWABILITY OF DEPRECIATION CLA IM ON LEASE ASSETS. HENCE, WE DO NOT FIND ANY MERIT IN THESE CONTENTION S RAISED BY THE ASSESSEE, IN THESE MAS., AND ALSO IN THE CONTENTION S RAISED BY THE LEARNED AR IN THE COURSE OF HEARING BEFORE US. 5. IN THE RESULT, ALL THE MAS OF THE ASSESSEE ARE D ISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( $ %& $ %& $ %& $ %& /KUL BHARAT) ' ' ' ' /JUDICIAL MEMBER ( . .. . . .. . /A.K. GARODIA) ! ' ! ' ! ' ! ' /ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD