9911796707
TMI Blog2005 (8) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances of the case, the Tribunal has not acted perversely in allowing the appeal of the assessee and deleting the additions made on disallowance of lease rentals with regard to plant and machinery belonging to assessee and which were never transferred by the sale and were taken back on lease by the assessee and whether such colourable device of tax evasion is permissible under law ?" 2. Whether the transaction of sale-cum-lease back is genuine or not and whether the lease rent should be allowed or not, the Tribunal has considered the factual aspects and legal provisions in this regard in paras 10 to 17 of its order. For ready reference, it reads as under : "10. We have heard the rival submissions and perused the materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.25 per cent. The learned Departmental Representative had relied upon the decision of Tribunal Special Bench, Bombay in the case of Mid East Portfolio Management Ltd. vs. Dy. CIT (supra) whereas the learned Authorised Representative had relied upon the decision of Hon'ble Gauhati High Court in the case CIT vs. George Williamson (Assam) Ltd. (2004) 187 CTR (Gau) 499: (2004) 265 ITR 626(Gau). He also relied upon another case reported in Industrial Development Corpn. of Orissa Ltd. vs. CIT (2004) 189 CTR (Ori) 417: (2004) 268 ITR 130(Ori). In the case of CIT vs. George Williamson (Assam) Ltd. (supra), the Hon'ble Gauhati High Court held that at pp. 629 and 630 that the delivery of goods to the buyer is proved by documents on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Avasrala Automation Ltd. vs. Jt. CIT (supra). The facts are distinguishable. In this case, the fact showed that while the board was interested in securing financial assistance by way of loan and for the said purpose the machinery/equipment was offered as a security by creating the documents in question to assure repayment of the loan advanced, the assessees found it convenient to enter into such a transaction as a device adopted to avoid payment of tax. The Tribunal, the appellate authority and the AO had recorded a finding that the transaction in question was not real and genuine; it was not in the nature of a tax planning which is within the framework of law. The finding recorded by the authorities did not suffer from any error, much less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be termed as sham transaction as held in the case CIT vs. Saksaria Sons (P) Ltd. (1981) 25 CTR (Bom) 148: (1982) 138 ITR 419(Bom) for the following reasons: (i) No actual transaction was executed on the basis of the agreement. (ii) The agreement is without any consideration. (iii) The amount be paid on the basis of the agreement which were actually paid but only the book entries were made. 16. The learned Authorised Representative had rightly placed reliance on Expln. 4A to s. 43(1) of the Act. It is clear from the Explanatory Notes [Circular No. 762, dt. 18th Feb., 1998 (1998) 145 CTR (St) 5, 20 : (1998) 230 ITR 12, 31 (St)], that this Explanation was introduced in order to curb the claim of higher depreciation by the lessor. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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