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TMI Blog2020 (8) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ion but to hold that there is no infirmity in the Assessment Order on the issue of disallowance of depreciation, we are of the considered opinion that various contentions raised by the assessee in these MPs and in the written submissions filed by learned AR of the assessee in both written submissions has no relevance for the purpose of deciding these MPs. Hence, we hold that there is no merit in these MPs. - [MP Nos. 52 to 55/Bang/2020 (in ITA Nos.239, 240, 241, 242/Bang/2018)] - - - Dated:- 14-8-2020 - Shri A. K. Garodia, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Applicant : Shri. Anil Kumar H, CA For the Revenue : Shri. Manjeet Singh, Addl. CIT ORDER PER A. K. GARODIA, AM: All these Miscellaneous Petition (MP) are filed by the assessee in which this is stated that there are some apparent mistake in the combined Tribunal order dated 20.09.2019. These MPs were filed by the assessee on 03.02.2020. Subsequently, the assessee has filed some additional grounds in respect of these MPs and this request is dated 30.07.2020 and since the same are filed by the assessee after the time allowed for filing MP under section 254(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese submissions have been made orally and also in written argument. 3) However, in the second round, the Honourable Tribunal has erred in holding that all the new lease transactions done during the accounting year ended 31.03.1995, 31.03.1996 31.03.1997 referred to in AO's orders dated 26.12.2007, passed u/s 143 (3) r.w.s 254 are Sham Transactions a) only for the reason that the lease agreements were not brought on record by the applicant; b) when there is no finding of the AO or CIT-A that no funds have gone out of the hands of the applicant; c) When AO in paragraph 6.13 of his order referred to by the Hon'ble Memebrs, has not given finding that the said leases are -sham transactions but has only held these transactions as financial transactions based on the criteria laid down by the Hon'ble Supreme Court in ABB case for determining whether a lease is to be classified as a financial lease or operating lease , as per directions given in the order of ITAT Bangalore Bench 'A' dated 19th January 2007 in ITA No. 88 103 (Bang) / 2000 ITA No. 170 (Bang) / 2001 (found at Page No. 53 to 65 of the paper book), and the reasons for holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 239/2018 for A Y 1995-96 Ground No. 3 in Grounds of Appeal for A Y 1995-96 in ITA No. 239/Bang/2018 is the same as Ground No. 3 of A Y 1996-97 in ITA No. 240/Bang/2018 and Ground No. 3 in ITA No. 241/Bang/2018. However, in para 6 of the common order same was overlooked and only Ground No. 3 of Asst Year 1996-97 and 1997-98 were considered and allowed. Hence paragraph 6 of the common order be amended to include Ground No. 3 of A Y 1995- 96 with suitable modification in paragraphs 7 and 8 after considering Additional Grounds in our MP in respect of ITA No. 240 and 241/Bang/2018 below. ITA No. 240/Bang/2018 for A Y 1996-97 and ITA No. 241/Bang/2018 for A Y 1997-98 Issue in Ground No. 3 has been allowed subject to verification by the A.O. whether equal amount of security deposit is received from the lessee. The relevant portion of the order is reproduced below (page 27 paragraph 8): Regarding these assets, this is not the fact pointed out before us that almost equal amount of security deposit is received by the assessee from the lessee. Hence this issue has to be decided on merit. In the present case, to examine these factual aspects, lease agreements hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten submissions filed by learned AR of the assessee in MP No.55/Bang/2020 as under: 1. In this petition the Applicant is seeking the recall of paragraphs 9 10 of the common order passed wherein it has been held that the Appellant is not the owner of assets in the case of two leases, just because a small portion of the purchase price has not gone directly from the appellant to the suppliers but gone from the lessees. In the words of the Honourable Bench When full cost was not borne by the assessee, how the assessee can claim ownership and claim depreciation 2. All submissions made by the undersigned before the Honourable Bench, both oral and written, were with reference to the ITA No 239-241/2018 relating to Assessment Year 1995- 96,1996-97 and 1997-98. The hearings in ITA No 239-241/2018 concluded on July 31st, 2019 in these cases. No written submissions were filed on 8-8-2019 in this appeal, relying on the Board Circular and the documents filed in the paper book which clearly showed that appellant was the owner of the assets given on lease in the relevant previous years. 3. The appellant is aggrieved that the order of the Honourable Bench has not considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, calling for any further submissions and evidences if considered necessary, in the interest of justice and fair play. 6. We also find that the issue in dispute was decided by the Tribunal as per para 5 of the impugned combined Tribunal order and hence, for ready reference, this para 5 of the impugned Tribunal order is reproduced herein below: 5. We have considered the rival submissions. We find that not even one lease agreement is made available before us. The AO in the assessment order has discussed about various clauses of some lease agreements and after considering a tribunal order rendered in the case of Centre for Monitoring Indian Economy vs. DCIT in ITA No. 3820/Bom/1990, the AO noted that in this case of identical nature, the tribunal held that it was not a lease agreement but a hire purchase agreement camouflaged as lease agreement and in the absence of lease agreement, we have no option but to hold that there is no infirmity in the assessment order on this issue. In most of the remaining appeals, no difference in facts is pointed out and for those appeals also, no lease agreement is brought on record. In the tribunal order in the assessee's own case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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