Itta/413/2013 Of The Commissioner Of Income Tax Ii v. Kabsons Gas Equipment Lte

IN THE HIGH COURT OF JUDICATURE, ANDHRAPRADESH AT HYDERABAD FRIDAY, THE THIRTEENTH DAY OF SEPTEMBERTWO THOUSAND AND THIRTEEN PRESENT THE HON’BLE THE CHIEF JUSTICESRI KALYAN JYOTI SEN GUPTA AND THE HON'BLE SRI JUSTICE K.C. BHANU I.T.T.A. No.413 OF 2013 Between: Commissioner of Income Tax-IIHyderabad. ..... Appellant AND M/s. Kabsons Gas Equipment Ltd., Raja Shyam Karan Road,Near Sister Nivedita School,Ameerpet, Hyderabad .....Respondent The Court made the following : JUDGMENT:(per the Hon’ble the Chief Justice Sri K.J. Sengupta) We have heard Mr. S.R. Ashok, learned SeniorCounsel appearing for the appellant and we have gonethrough the impugned judgment and order of the learned Tribunal. This appeal is sought to be admitted against thejudgment and order of the learned Tribunal dated 8.6.2012in relation to the assessment year 1995-1996, on thefollowing suggested questions of law: 1 .1. Whether, on the facts and in the circumstancesof the case and in law, the Appellate Tribunal isjustified in holding that the assessee is entitled todepreciation on the gas cylinders without duly takinginto consideration all the materials/ documents andthe express finding of the Assessing Officer that thetransaction amounts to a sale and thus acted withperversity? 2 .2. Whether in the facts and circumstances of thecase the Appellate Tribunal is correct in holdingthat the suspension of the Appellate Tribunal’s orderin G.K. Kabra (87 ITD 249) by the Hon’ble High Courtobliterates its precedential value? The learned Tribunal on facts found that the consumerhas no right over the cylinder and the cylinders are theproperty of the assessee, as governed by the terms andconditions of the contract. After reading the terms of thecontract, the learned Tribunal, on facts found that transfer ofownership of the cylinder does not pass to the consumer.Security deposit was taken as indemnified measure andfound that the termination of contract is preceded bysurrender of the consumer cylinder, and refund of thesecurity amount is automatic. Therefore, the securityamount is realized and held by the assessee as a trusteeand not as a full owner thereof. The learned Tribunal, ofcourse, has noted the judgment of the Tribunal whichdecided the issue, as it has been decided by the impugned judgment and order and the said judgment is in appealbefore this court. Learned Tribunal has also relied on otherjudgments including that of the Special Bench. The decisionof the Tribunal passed earlier is not the only decision whichhas been taken note of by the Tribunal, but other decisionstoo. On facts, it is found that it was only a leasing ofcylinders and the security amount is not the considerationfor sale. Therefore, we are of the view that the decision ofthe learned Tribunal is correct. We accordingly dismiss theappeal. No order as to costs. ______________________ Kalyan Jyoti Sengupta, CJ. September 13, 2013MAS _____________K.C. Bhanu, J.