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| DATE: | September 16, 2013 (Date of publication) |
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| Click here to download the judgement (UTI_Bank_SLB.pdf) |
S. 32: Sale & lease transactions by banks are genuine and eligible for depreciation
The assessee, a Bank, purchased windmills worth Rs. 27 crore in a sale-and-lease-back transaction and claimed depreciation thereon. The AO & CIT(A) rejected the claim and held that the transaction was not one of purchase but was a finance transaction in which the windmills were received as security on the basis that (a) under the Banking Regulation Act, 1949, the assessee was not permitted to engage in any business other than banking, (b) the lease rentals were fixed on the basis of interest on advances and other charges receivable by the assessee as a financier and were not co-related to the projected income on the capacity of each wind energy generator, (c) the assessee was not entitled for surplus income on excess generation of power and was not to suffer any loss owing to lesser production or any other contingencies, (d) the return of the assessee on financing was granted by taking interest-free deposit, (e) the assessee had no responsibility of labour, repairs, taxes etc in running of the project and (f) though the purchase of wind energy generators was in the assessee’s name, the land and power purchase agreements with the Electricity Boards were not in its name. On appeal by the assessee to the Tribunal HELD allowing the appeal:
S. 32 allows depreciation if the asset is “owned, wholly or partly, by the assessee and used for the purposes of the business“. There is no requirement that the asset must be used by the assessee himself. It is sufficient if the asset is utilized for the purpose of business of the assessee. The argument, relying on McDowell 154 ITR 148 (SC), that Sale & Lease Back transactions are a devise for lowering the tax effect cannot be accepted. Sale & Lease Back transactions are genuine and cannot be considered to be sham. By virtue of the judgement in Cosmo Films Ltd 338 ITR 266 (Del), the contrary judgements in MidEast 87 ITD 537 (Mum) (SB) and Induslnd Bank 135 ITD 165 (Mum) (SB) are impliedly reversed (ICDS Ltd 350 ITR 527 (SC) & Development Credit Bank Ltd (ITAT Mum) followed).
The latest on the subject controversy , it is to be noted, once again bears on it sleeves that the distinction sought to be made between the two concepts of ‘finance lease’ and ‘operating lease’, drawing support /strength from the AS 19 holding a grip in the realm of book keeping i.e. ‘accounting’, cannot , according to a perceptive view, be sworn to be amenable to a profoundly objective view / conclusive opinion. To put it differently, it can only be expected to be a live controversy, or attempted to be kept so, so long/for the years for which the extant law holds good, hence requiring to be applied.
In the DTC pending enactment, going by one’s memory, in the name of simplification of the law, for respective applicability of the proposed provisions , the criterion is going to be whether the asset is classifiable as ‘investment asset’ or a ‘business trading asset’. On a tentative reading thereof -(not an in-depth study), there seems to be no reasonable ground, much less a certainty, for anyone to believe that such types of controversies as referred above, would remain eliminated if and when that comes to be enacted and takes effect. Also, it is anybody’s guess, perhaps a gamble to predict, what is really in store, from the viewpoint of taxpayers, in terms of disputes and litigation, – for the better or worse, in comparison to the present scenario.