Delhi H.C : The AO conducted an inquiry to verify the genuineness of the alleged purchase and recorded a finding that the assessee had failed to establish the purchase of the machinery

High Court Of Delhi

CIT vs. Reetu Finlease (P) Ltd.

Sections 32, 260A

Asst. Year 1996-97

T.S. Thakur & B.N. Chaturvedi, JJ.

IT Appeal No. 42 of 2006

9th January, 2006

Counsel Appeared

Sanjeev Sabharwal, for the Appellant : None, for the Respondent

JUDGMENT

By the court :

For the asst. yr. 1996-97, the assessee who was engaged in the business of leasing equipments claimed depreciation on Cyclonic Scubber Equipment and Electro Static Precipitator purchased from M/s Assam Solvex (P) Ltd., Assam, for a sum of Rs. 39,87,500. The AO conducted an inquiry to verify the genuineness of the alleged purchase and recorded a finding that the assessee had failed to establish the purchase of the machinery. He rejected the claim for depreciation made by the assessee on that finding. The assessee appealed to the CIT(A) against the said finding who upset the view taken by the AO. The CIT(A) held the purchase of the machinery by the assessee from M/s Assam Solvex (P) Ltd., Assam, and Perfect Engineering (P) Ltd. to have been established. The CIT(A) further held that the machines had in fact been leased to M/s Sitapur Plywood Manufacturing (P) Ltd. and installed in their plywood manufacturing unit which sufficiently established the use of the machine even by the lessee. On those two findings, the CIT(A) allowed the claim for depreciation made by the assessee. In a further appeal preferred before the Tribunal by the Revenue both these findings have been affirmed and the Revenue’s appeal dismissed. On the question of purchase of machines by the assessee, the Tribunal has held as under :

“As such, considering all the facts and circumstances of the case, we find that there was ample evidence brought on record by the assessee to conclusively establish that the machinery in question was purchased by it from the two parties from Assam i.e. M/s Assam Solvex (P) Ltd. and M/s Perfect Engineering (P) Ltd. and the same was sent to M/s Sitapur Plywood Manufacturing (P) Ltd. to whom they were given on lease on the terms and conditions set out in the lease agreement. We also find that the so-called discrepancies/deficiencies pointed out by the AO in these transactions were misconceived and in any case, the same were not sufficient to doubt the genuineness of the said transactions and dislodge the claim of the assessee for depreciation on the said machinery which was supported by cogent and conclusive evidence.”

2. Insofar as the actual user of the machines is concerned, the Tribunal has relied upon decision of this Court in Capital Bus Service (P) Ltd. vs. CIT (1980) 17 CTR (Del) 155 : (1980) 123 ITR 404 (Del) and that of High Court of Kerala in the case of CIT vs. Geo Tech Construction Corpn. (2000) 162 CTR (Ker) 528 : (2000) 244 ITR 452 (Ker) and held that since the assessee was doing the business of leasing, the machines must be deemed to have been used for its business no sooner the same were leased to the lessee. Even on the question of actual user by the lessee the Tribunal held that the machine having been installed at the place of the lessee, its user was established in the absence of any evidence to the contrary. The following passage from the order passed by the Tribunal is relevant in this regard : “As regards the use of the said machinery, it is observed that the same were meant for pollution control in the plywood manufacturing unit and having held that the same were installed and being used by M/s Sitapur Plywood Manufacturing (P) Ltd. in their plywood manufacturing unit, such use stands automatically established especially when there is nothing brought on record to prove otherwise. As regards the dispute/doubt raised on behalf of the Revenue about the exact date of installation of the machinery and actual use of the same by the lessee, we may observe that the date which assumes relevance and significance from the point of view of the assessee being lessor is the date on which the machinery was actually given on lease and not the date of installation of the said machinery or use thereof by the lessee. Since the machinery in the present case was given on lease by the assessee to the lessee in the month of September, 1995 as evident from the relevant lease agreement and the same were also proved to have been actually delivered to the lessee before 30th Sept., 1995 on evidence, they were put to use by the assessee for the purpose of its leasing business before 30th Sept., 1995 itself as held by Delhi High Court in the case of Capital Bus Service (P) Ltd. vs. CIT (1980) 17 CTR (Del) 155 : (1980) 123 ITR 404 (Del) and by Hon’ble Kerala High Court in the case of CIT vs. Geo Tech Construction Corpn. (2000) 162 CTR (Ker) 528 : (2000) 244 ITR 452 (Ker). The objection of the AO on this count thus was not tenable and overruling the same, we hold that the assessee was duly entitled to claim depreciation at full rate as applicable.” Mr. Sabharwal, learned counsel appearing for the appellant before us did not pursue the Revenue’s challenge to the genuineness of the purchase of the machines by the assessee. He rightly accepted the factum of the purchase in the light of the concurrent findings of fact recorded by the CIT(A) and the Tribunal. That leaves only one aspect for our consideration namely, whether the said machines were utilised by the assessee for its business so as to entitle it to claim depreciation in terms of s. 32 of the Act.

The Tribunal has answered the question of utilisation of the machines also in favour of the assessee. It has followed the decision of this Court in Capital Bus Service’s case (supra) and the view expressed by the Kerala High Court in Geo Tech Construction Corpn. (supra) to hold that once the machines are shown to have been handed over to the lessee, the same must be deemed to have been utilised for the business of the assessee especially when the assessee is engaged only in leasing business. There is in our view no error in that view warranting interference of this Court. Even otherwise CIT(A) and the Tribunal have concurrently come to the conclusion that the machines in question had actually been installed at the plywood manufacturing unit of the lessee. The actual user of the machine was in the light of the said installation presumed and in our view rightly so. In the absence of any evidence to the contrary once the machines were installed at the place of the lessee it could be presumed that the same had been utilised, even assuming that such actual user was a condition precedent for the lessee (lessor) to claim depreciation. In the light of the findings of fact recorded by the Tribunal, no question of law much less a substantial question of law arises for our consideration in this appeal, which fails and is hereby dismissed.

[Citation : 286 ITR 652]

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