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TMI Blog2019 (2) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... .Nos.887, 889 and 892 of 2018, dated 15.03.2018 for the assessment years1995-96, 1995-96 and 1996-97. 2.These appeals have been filed by raising the following substantialquestions of law:Substantial Question of Law in T.C(A).Nos.887 & 889 of 2018 "Reopening of Assessment: 1)Whether the Assessing Officer had exceeded thejurisdiction by reopening the assessment under Section147 of the Income Tax Act, 1961? 2)Whether the reopening is merely on challenge ofopinion and the Assessing Officer has no jurisdiction underSection147 to reopen the assessment? Disallowance of Depreciation: 3)Whether on the facts and in the circumstances ofthe case, the Income Tax Appellate Tribunal was right inlaw in confirming the disallowance of depreciation onSp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (400 mm * L 760) could be transported inone truck/lorry of 9-tonne capacity. The weight of the Rollsallegedly sent by Lorry No.MCU 3005 is an under: 400 MM x L 1020 .. 1800 kg x 12 = 21,600 kgs 485 MM x L 760 .. 1850 kg x 14 = 25,900 kgs Total .. 47,500 kgs Similarly, the weight of the Rolls allegedly sent by LorryNo.MH 04/5194 is as under: 485 MM x L 1300 .. 2500 kg x 13 = 32,500 kgs 485 MM x L 1200 .. 2400 kg x 13 = 31,200 kgs Total 67,700 kgs This itself would go to show that the consignments werenever undertaken. Suffice it to say that during enquiry bythe Department, the said Transporter (Noble Roadlines)denied having transported any Rolls and stated that he hastransported on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence, it cannotbe termed as a sham or a device. When once the managingdirector admits in his affidavit that there was no purchaseof materials/machinery, there was no lease of machineryand, therefore, the amounts paid is not lease of machineryand, therefore, the amounts paid is not lease rentals, wefail to understand what more evidence was required toestablish that the case of lease rentals pleaded by theassessee is a sham transaction or unreal transaction. Therefore, the Tribunal without any justification erred insetting aside the concurrent findings recorded by the twocourts below, which is based on legal evidence. However,after holding that the assessee is not entitled to a claim ofdepreciation on the lease rentals it ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel appearing for the appellantsubmitted that atleast the peak of the financial transaction should be takeninto consideration and the assessee should be entitled to whatever relief underthe Act in respect of such transaction. 9.We outrightly reject the said submission since the assessee hasengaged in fraudulent activity by making a bogus claim of depreciation. Theassessee's intention is tainted with malafide and it attempted to createevidence which was self serving as related parties had uttered the truth. Itdefies logic as to how the cargo of 67,700 kgs could have been transported intwo lorries. The transporter who is said to have been transported only SGCIrolls has stated that he never transported any rolls but transporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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