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S. 32: Special Bench verdicts on Sale & Lease Back & lease finance are not good law
The assessee, a Bank, bought assets from its customers and leased it back to them (“sale and lease back”). It also purchased assets identified by its customers and leased it to them (“finance lease”). The assessee claimed depreciation on the assets on the ground that it was the owner and had used the assets for business purposes. The AO, relying on MidEast Portfolio Management 87 ITD 537 (Mum) (SB) and IndusInd Bank 135 ITD 165 (Mum) (SB), disallowed depreciation on the ground that the transactions were an “eyewash” and “colourable device”. The CIT(A) partly confirmed the disallowance. On appeal by the assessee to the Tribunal, HELD allowing the claim:
The issue of whether the lessor is entitled to claim depreciation in the case of a “sale and lease back” transaction as well as in a “finance lease” have been laid to rest by the judgements in ICDS 350 ITR 527 (SC), Kotak Mahindra Finance 317 ITR 236 (Bom) and Cosmo Films 338 ITR 266 (Del) where it was held that the lessor is eligible to claim depreciation. The judgements of the Special Bench in MidEast Portfolio Management 87 ITD 537 (Mum) (SB) and IndusInd Bank 135 ITD 165 (Mum) (SB) are impliedly overruled.
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Why it is said, -“impliedly overruled”?
On the premise that the “judgements in ICDS 350 ITR 527 (SC)” has fully and finally settled the issue, and is on all fours, is it not a ‘non-issue’, hence not a ‘question of law’ open to be re-agitated by the AO, leading to impermissible litigation and repeated adjudication ?