The Commissioner Of Income Tax v. M/S. Azad Finance & Trading

IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 81 OF 2008 The Commissioner of Income Tax ... Applicant Versus M/s. Azad Finance & Trading Investment Ltd. ... Respondent Mr.S.M. Shah for the Applicant. Ms. Beena Pillai i/by D.M. Harish & Co. for Respondent. CORAM: F.I. K.U.CHANDIWAL,JJ. DATED: JUNE 26, 2008 P.C. . The revenue has preferred this appeal on the following questions : "Whether on the facts and in the circumstances of the case the Hon’ble Tribunal is right in holding the transaction as at arms length and allowing the claim of depreciation thereby ignoring the facts brought on record by the Assessing Officer by conducting the survey before completing the assessment?" . The same question was a question also framed before the I.T.A.T. Before I.T.A.T. it was Revenue which was in appeal. The I.T.A.T. after considering the facts on record dismissed the appeal. . From the record, we find that the assessee had purchased the goods from HSIL. The assessee in turn leased the goods to HIPL and realised the entire lease rent for the period of five years. The order of the Tribunal notes the letter dated 3.4.2000 addressed by HIPL to the assessee which had been considered by the C.I.T. (Appeals) wherein it has been confirmed by HIPL that the ownership of the one set of sugar rollers which were taken on lease under the said lease agreement, remains with the assessee. H.I.P.L. has also confirmed that they have sub leased the said rollers to Shri. Hanuman Sugar & Industries Ltd. The learned tribunal noted that the Assessing Officer has not doubted the existence of the impugned asset or its use by the sub lessee i.e. H.S.I.L. and accordingly held that the depreciation for the assessment year under consideration could not be disallowed. The tribunal also recorded a finding that nothing has been brought on record to show that the H.I.P.L. has shown these assets as purchase from the assessee and shown them in its balance sheet as an asset belonging to H.I.P.L. There are purely findings of fact confirming the order of C.I.T. (A). . Considering the above, the appeal as filed is not maintainable which is accordingly dismissed. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.)(F.I.REBELLO, J.) (F.I.REBELLO, J.)