TMI Blog2005 (8) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the appeal. The appeal stands dismissed at admission stage. - HON'BLE Y.R. MEENA, ACTG. C.J. AND PREM SHANKAR ASOPA, J. For the Appellant : R. B. Mathur For the Respondent : None JUDGMENT By the Court-The following questions are proposed for admission of the appeal : Whether in the facts and circumstances of the case, the Tribunal was justified in law and has not acted perversely in deleting the additions made by the AO on account of disallowance of claim of lease rentals on the transactions of sale-cum-lease back agreement ? Whether in the facts 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 rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook 14 that the decision of the board as per 443rd the meeting held on 6th Jan., 1995, the board discussed in detail the proposal brought out in the agenda note for securing funds through leasing at an interest rate of ₹ 7.70 per cent per annum through leasing companies. It was noted that this interest rate is roughly half the rate at which the RSEB is generally borrowing funds from the financial institutions. As per order of the AO at p. 3, the RSEB had been raising money from various financial institutions carrying interest rate ranging between 15 to 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 (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi in the case of Tej International (P) Ltd. vs. Dy. CIT (2000) 69 TTJ (Del) 650 wherein it was held that once an authority higher than Tribunal has expressed an opinion on the issue before the Tribunal, (it) is not permissible for it to rely upon the contrary decisions of the Tribunal included by a Special Bench. Fact that the judgment was rendered by High Court other than the jurisdictional High Court does not alter the position. 13. The learned Departmental Representative had relied upon the decision of Hon'ble Karnataka High Court in the case of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y/sale as per definition of delivery of goods in s. 33 of Sale of Goods Act, 1930. 15. After going into facts of the case, we find that the assessee's board and the lessor with various companies had entered into genuine agreement. The assets had been sold for which consideration had been received. By this colourable device, the assessee's board had been able to raise funds at lessor rate which is prevalent in the market. By entering into these transactions, the tax liability of the assessee board has not been reduced. We find that this cannot 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 execut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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