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TMI Blog2012 (3) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [2005] 126 Comp Cas 332, which was clearly applicable in this case." At the time of hearing before us, it is stated by the learned Departmental representative that during the accounting year relevant to the assessment year under consideration, the assessee-company leased out certain assets on financial lease basis. However, the assessee also claimed depreciation on those assets. That admittedly, on the financial lease, the depreciation is not permissible and, therefore, the Assessing Officer rightly disallowed the depreciation on the assets which were given on the basis of financial lease. In support of this contention, he relied upon the decision of the hon'ble apex court in the case of Asea Brown Boveri Ltd. v. Industrial Finance Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lease as finance lease. We have carefully considered the arguments of both sides and perused the material placed before us. In the books of account, the assessee has accounted for the income as if the transaction was in the nature of financial lease. However, in the computation of income, he offered the income and claimed the depreciation as if the transaction was operating lease. The Assessing Officer has not examined the lease agreement and has not arrived at a conclusive finding with regard to the nature of the lease but treated the lease to be finance lease and, accordingly, disallowed the depreciation. It was contended by learned counsel that if the Assessing Officer treated the lease to be finance lease, then, he should have ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.62,96,000 on account of unclaimed liabilities treated as income by the Assessing Officer ignoring that the comments reported in Form 3CB by the auditor stating that the claims from the overseas companies with respect to the credit balance were still pending at the time of filing the return and in the absence of confirmation filed by those creditors, the Assessing Officer was correct in writing back the unclaimed liabilities to the total income." The Assessing Officer noted that the assessee has not submitted any plausible explanation as to why the amount of unclaimed liabilities remained unclaimed for more than a year. He, therefore, added the same to the income of the assessee. The learned Commissioner of Income-tax (Appeals) recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income tax Act, 1961 would be applicable in the year in which there is a remission or cessation of a trading liability incurred in an earlier year. The onus is upon the Revenue to prove that there was remission or cessation of liability. In the case under consideration before us, the Revenue has not brought on record an evidence to establish that there was any remission or cessation of the trading liability. On the other hand, the learned Commissioner of Income-tax (Appeals) has recorded a finding that the liability under consideration was maximum four months' old. He has also given the month wise detail of such liability which is reproduced below: (Rs.) December, 2004 13,83,683 January, 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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