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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 ..... In the course of hearing, the Bench wanted to know the relevant paras of the MP in which the assessee has pointed out the apparent mistakes in the combined Tribunal order. In reply, it was submitted by learned AR of the assessee that paras 2 to 10 of these MPs are relevant in this regard. He also submitted that he has filed 2 sets of written submissions out of which 1 set of written submission is for MP No.52 to 54/Bang/2020 and the second set is for MP No.55/Bang/2020. He submitted that these MPs should be disposed of by considering the contentions raised in these MPs and the written submissions. As against this, learned DR submitted that there is no apparent mistake in this combined Tribunal order and therefore, all these 4 MPs filed by the assessee should be dismissed. 3. We have considered the rival submissions. First of all, we reproduce paras 2 to 10 from MP No.52/Bang/2020 as it has been agreed by both sides that the contents of all the MPs are same. These paras of MP are as under: "2) The assessment orders made on petitioner for the 3 years Asst Year 199596, 1996-97 and 1997-98 clearly indicate that the orders passed are as per directions given in the order of ITAT Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the same are not held as "Sham Transactions" by ITAT in its order dated 19th January 2007. 5) The Honourable Tribunal has not decided the issue of the claim of depreciation on "financial leased assets" as per CBDT circular No. 2/2001 and Instruction No. 1978 dated 31.12.1999 a copy of each was enclosed at Pages No. 77 to 82 of the paper book. 6) The Honourable Tribunal at Page 24 of the order erred in concluding that "in A Y 1995-96 which is before us, also it is noted by the AO, the cost of the leased asset is Rs. 1.99 Crores and lessee has to pay security deposit of Rs. 1.7 Crores in addition to lease rental of Rs. 1.69 Crores in the total period of 96 months, when no such instance is found in the 7 lease agreements detailed in paras 6.2 of the assessment order for A Y 1995-96, a summary of which was given in the paper book at page xiv (Refer Annexure to the written argument for SLB made during the year), and reproduced in page 21 of the ITAT order. 7) The Honourable Tribunal has further erred in stating that "It is seen that the facts in this year are similar and no difference in facts is pointed out in other years" without having the lease agreements before it. 8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of paper book, the orders of the A.O. clearly indicate that in all the lease agreements with educational institution, equal amount of security deposit have been obtained. This is also asserted in the following paragraphs of CIT-A order for A Y 1995-96, 1996-97 and 1997-98, (Refer paragraphs 5 7 1 of CIT-A order for A Y 1995-96, 5 7 1 of CITA order for A Y 1996-97 and 5 7 3 of CIT-A order for A Y 1997- 98). Hence lower authorities have given a finding that the security deposits received equal the investment of the Appellant in the assets which is not disputed. The applicant also wishes to draw attention to the decision of the Honourable Karnataka High Court, in Manipal Finance Corporation Limited vs Assistant Commissioner of Income Tax, Circle 1, Udupi enclosed in pages 121 to 125 of the written submissions filed before the Honourable Bench. In paragraph 1 of the said judgement, the Honourable High Court sets out the brief facts of the case, wherein it has noticed that Lessor has obtained deposit equivalent to the cost of the equipment from the Lessees and is also aware of the earlier order of the High Court, cited by the CIT-A in our case for upholding the disallowance. Having con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When full cost was not borne by the assessee, how the assessee can claim ownership and claim depreciation" , attention would have been drawn to the following documents enclosed in the paper book: a. Invoices in the name of the Appellant, made out for the full value of the assets given on lease enclosed in pages 27, 55 and57 of the paper book . b. Insurance polices, issued in the year 2000- 2001 which still continue to show the appellant as the owner. These policies enclosed in pages 39 and 69 were issued by public sector insurance companies which would not issue policy without satisfying themselves about the ownership. c. Lease agreements between the Appellant and the Lessees accepting that Appellant is the owner of those assets though part consideration was paid by the lessee to the vendors. This question was never put to the undersigned/ discussed in the hearing. 5. Granting for arguments sake that the Honourable Tribunal may be right in holding that the assessee is not the full owner of the asset because a portion of the cost has gone from the lessee, depreciation under Section 32(1) is available to a person who is a part owner. Section 43(1) also envisages a condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to validly make payment for purchase price. In A. Y. 1995 - 96 which is before us also, it is noted by the AO on page 20 of the assessment order for A. Y. 1995 - 96 that cost of the leased asset is Rs. 1.99 Crores and the lessee had to pay security deposit of Rs. 1.7 Crores in addition to lease rental of Rs. 1.69 Crores in the total lease period of 96 months. It is seen that the facts in this year are similar and no difference in facts is pointed out in any other year. When, the lease transaction itself is sham as per the earlier tribunal order in assessee's own case under similar facts, no other argument or judgment cited in the written submissions reproduced above is required to be considered. Hence, we decline to interfere in the orders of the lower authorities on this issue in all years." 7. From the above para 5 of the impugned Tribunal order, it is seen that the Tribunal has decided the issue on this basis in all these appeals that not even one lease agreement is made available before the Tribunal and the AO in the Assessment Order has discussed about various clauses of some lease agreement and after considering the Tribunal order rendered in the case of Centre for Mon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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