Kaira Con Co. Ltd., v. JCIT Special Range 13,

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI . . . . ! ! ! ! '# $% '# $% '# $% '# $% & & & & ' ' ' ' BEFORE SHRI D. KARUNAKAR RAO ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA JUDICIAL MEMBER . / ITA NO. 6987/MUM./2003 ( &( ) *) / ASSESSMENT YEAR : 199697 ) . / ITA NO. 5280/MUM./2004 ( &( ) *) / ASSESSMENT YEAR : 199798 ) . / ITA NO. 5281/MUM./2004 ( &( ) *) / ASSESSMENT YEAR : 199899 ) KAIRA CAN COMPANY LTD. TIECICON HOUSE DR. E. MOSES ROAD MUMBAI 400 011 .. + / APPELLANT ( V/S JT. COMMISSIONER OF INCOME TAX SPECIAL RANGE13 AAYAKAR BHAVAN 101 M.K. ROAD MUMBAI 400 020 .... -.+ / RESPONDENT + . / PERMANENT ACCOUNT NUMBER AAACK4319B &( )0# 1 2 / ASSESSEE BY : MR. MILIN THAKORE 3 1 2 / REVENUE BY : MR. AARSI PRALAD ( 1 # / DATE OF HEARING 19.07.2013 $ 45* 1 # / DATE OF ORDER 24.07.2013 19.07.2013 $ $ $ $ / ORDER PER BENCH IN THE AFORESAID APPEALS PREFERRED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 31 ST JULY 2003 FOR ASSESSMENT YEAR 199697 AND ORDER 5 TH MARCH KAIRA CAN COMPANY LTD. 2 2004 FOR ASSESSMENT YEARS 199798 & 199899 RESPEC TIVELY THERE HAD BEEN DIFFERENCE OF OPINION AMONGST THE MEMBERS. WHILE A DJUDICATING THE ISSUES UNDER CONSIDERATION THE LEARNED MEMBERS HAVE EXPRE SSED THEIR INDEPENDENT VIEWS WITH REGARD TO THE ALLOWABILITY OF CLAIM OF L EASE RENT IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN ASIA BROWN BROVERI LTD. V/S INDUSTRIAL FINANCE CORPORATION OF INDIA [2006] 154 TAXMAN 512 (SC) WHICH RESULTED IN PASSING OF TWO ORDERS WITH DIFFERENT OP INION ON THE ISSUE. 2. THE DISPUTED ISSUE WAS THEN REFERRED BY THE HONBLE PRESIDENT TO THE LEARNED THIRD MEMBER UNDER SECTION 255(4) OF THE IN COME TAX ACT 1961 (FOR SHORT THE ACT ) SEEKING OPINION ON THE FOLLOWING QUESTIONS: 1. WHETHER THE IMPUGNED TRANSACTION OF LEASING OUT OF ASSETS TO THE ASSESSEE IS A LEASE TRANSACTION OR A FINANCE LEASE? 2. WHETHER THE ASSESSEE CAN BE HELD TO BE THE OWNER OF THE ASSET ACQUIRED UNDER THE ABOVE TRANSACTIONS AND IS ENTITL ED FOR DEPRECIATION FOR THE SAID ASSETS OR ASSESSEE BEING A LEASE IS EN TITLED TO CLAIM THE LEASE RENT PAID TO THE LESSOR AS REVENUE EXPENDITUR E? 3. THE LEARNED THIRD MEMBER VIDE ORDER DATED 5 TH JULY 2013 HAS UPHELD THE ORDER PASSED BY THE LEARNED ACCOUNTANT MEMBER W HILE ANSWERING THE ABOVE QUESTIONS IN FAVOUR OF THE ASSESSEE FOR THE D ETAILED REASONS GIVEN IN HIS ORDER. CONSEQUENTLY THESE APPEALS WERE FIXED B EFORE US FOR PASSING A CONFIRMATORY ORDER IN WAKE OF THE ORDER PASSED BY T HE LEARNED THIRD MEMBER. 4. SINCE THE LEARNED THIRD MEMBER HAS CONCURRED WITH T HE OPINION EXPRESSED BY THE LEARNED ACCOUNTANT MEMBER ACCORDI NGLY WE CONFIRM THE ORDER 5 TH JULY 2013 PASSED BY THE LEARNED THIRD MEMBER. CON SEQUENTLY IN VIEW OF THE MAJORITY OPINION THE APPEAL OF THE ASS ESSEE IS TREATED AS ALLOWED. 5. 0 #6 &( )0# 1 7 # 8 ( 3# 9: ; 5. IN THE RESULT ASSESSEES APPEALS ARE TREATED AS ALLOWED. KAIRA CAN COMPANY LTD. 3 $ 1 45* 7 <(6 24.07.2013 3 5 1 = ; ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF JULY 2013. 19 SD/- . . . . D. KARUNAKAR RAO RAO ACCOUNTANT MEMBER SD/- '# '# '# '# $% $% $% $% & & & & AMIT SHUKLA JUDICIAL MEMBER MUMBAI <( <( <( <( DATED: 1 24.07.2013 249224 TH JULY 2013 $ 1 -&#'> ?>*# / COPY OF THE ORDER FORWARDED TO : (1) &( )0# / THE ASSESSEE; (2) 3 / THE REVENUE; (3) @ () / THE CIT(A); (4) @ / THE CIT MUMBAI CITY CONCERNED; (5) >C= -&#&( / THE DR ITAT MUMBAI; (6) =) D / GUARD FILE. .># -&# / TRUE COPY $( / BY ORDER - 3. EF / PRADEEP J. CHOWDHURY 0G &(3 E / SR. PRIVATE SECRETARY H / 9 3 / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI