2013 (11) TMI 574 - HC - Income Tax

Disallowance under Section 35E / 37(1) of the Income Tax Act - Disallowance of depreciation of sale and lease back - Exclusion of the principal sum of lease rent Held that - Remanded the matter to the Income Tax Appellate Tribunal to consider the aforesaid appeals afresh with respect to the aforesaid issues in accordance with law and on its own merits and after giving an opportunity to the assessee as well as the revenue - This Court has not expressed anything on merits with respect to the aforesaid issues and the question whether the decision of the Special Bench of the tribunal rendered in the case of IndusInd Bank Ltd. v. Addl. CIT 2012 (3) TMI 212 - ITAT MUMBAI would be applicable with respect to the aforesaid issues or not, is kept open.

Summary

Issues Involved:
1. Disallowance under Section 35E / 37(1) of the Income Tax Act
2. Disallowance of depreciation of sale and lease back assets
3. Exclusion of the principal sum of lease rent

Analysis:

Issue 1: Disallowance under Section 35E / 37(1) of the Income Tax Act
The appeals by the assessee challenge the judgments related to disallowances under Section 35E / 37(1) of the Income Tax Act. The contention is that if the argument under Section 35E is not accepted, an alternative submission under Section 37(1) should be considered. The tribunal's observation that there were no serious arguments under Section 35E despite the contrary claim by the assessee led to the appeals. The tribunal's rejection of rectification applications further fueled the dispute. The assessee's representative emphasized that both Section 35E and Section 37(1) were argued before the tribunal and CIT(A) but were not adequately considered. The request for remand to the tribunal to address these issues was made.

Issue 2: Disallowance of Depreciation of Sale and Lease Back Assets
The matter of disallowance of depreciation on sale and lease back assets is directly linked to the questions raised by the revenue in their appeals. Despite the serious arguments presented by the assessee, the tribunal did not address this issue. The assessee emphasized that the matter was vigorously pressed into service but not given due consideration. Therefore, there is a plea for remanding the appeals to the tribunal to address this issue along with others.

Issue 3: Exclusion of the Principal Sum of Lease Rent
The revenue's appeals also raise the question of whether the principal portion of lease rent should be excluded from the total income of the assessee. The parties reached a consensus to remand the appeals to the Income Tax Appellate Tribunal to consider all the questions raised in the respective appeals. Both the revenue and the assessee agreed to this course of action to allow the tribunal to decide the issues afresh in accordance with the law and on their merits.

In conclusion, the High Court allowed the appeals in part and remanded them to the Income Tax Appellate Tribunal for reconsideration of the issues related to disallowances under Section 35E / 37(1), disallowance of depreciation on sale and lease back assets, and exclusion of the principal sum of lease rent. The Tribunal is directed to review the appeals afresh, giving both the assessee and the revenue an opportunity to present their cases. The High Court refrained from expressing any opinion on the merits of the issues, leaving the applicability of previous tribunal decisions open for consideration.