{"id":39859,"date":"2008-10-15T00:00:00","date_gmt":"2008-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-tulip-finance-ltd-on-15-october-2008"},"modified":"2015-08-26T09:16:40","modified_gmt":"2015-08-26T03:46:40","slug":"commissioner-of-income-tax-vs-tulip-finance-ltd-on-15-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-tulip-finance-ltd-on-15-october-2008","title":{"rendered":"Commissioner Of Income Tax … vs Tulip Finance Ltd on 15 October, 2008"},"content":{"rendered":"
Delhi High Court<\/div>\n
Commissioner Of Income Tax … vs Tulip Finance Ltd on 15 October, 2008<\/div>\n
Author: Badar Durrez Ahmed<\/div>\n
           THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                                 Judgment delivered on: 15.10.2008\n\n+            ITA 458\/2007\n\nCOMMISSIONER OF INCOME TAX\nDELHI- VI                                                     ... Appellant\n\n                                  - versus -\n\nTULIP FINANCE LTD                                             ... Respondent<\/pre>\n
Advocates who appeared in this case:\n<\/p>\n
For the Appellant     : Mr R. D. Jolly\nFor the Respondent    : Mr V. P. Gupta with Mr Basant Kumar\n\nCORAM:-\nHON'BLE MR JUSTICE BADAR DURREZ AHMED\nHON'BLE MR JUSTICE RAJIV SHAKDHER\n\n<\/pre>\n
     1.    Whether Reporters of local papers may be allowed to
\n           see the judgment ?\n<\/p>\n
     2.    To be referred to the Reporter or not ?\n<\/p>\n
     3.    Whether the judgment should be reported in Digest ?<\/p>\n
BADAR DURREZ AHMED, J (ORAL)<\/p>\n
1.            The present appeal under Section 260 A of the Income Tax<\/p>\n
Act, 1961 (hereinafter referred to as the \u201esaid Act\u201f) has been preferred<\/p>\n
by the revenue against the order dated 31.08.2006 passed by the<\/p>\n
Income Tax Appellate Tribunal in ITA 5810\/Del\/1998 pertaining to the<\/p>\n
assessment year 1994-1995.\n<\/p>\n<\/p>\n
2.           The learned counsel for the revenue challenged the said<\/p>\n
order of the Tribunal on four issues. The first issue was with relation<\/p>\n
ITA No. 458\/2007                                                     Page No.1 of 8<\/span>
\n to the deletion of the addition of Rs 33 lacs, which had been made by<\/p>\n
the Assessing Officer on account of unexplained share capital under<\/p>\n
Section 68 of the said Act. The second issue pertains to the deletion<\/p>\n
made by the Tribunal of the addition of Rs 35,06,292\/- by the<\/p>\n
Assessing Officer on account of alleged unexplained security deposits<\/p>\n
under Section 68 of the said Act.       The third issue relates to the<\/p>\n
disallowance of depreciation by the Assessing Officer amounting to<\/p>\n
Rs 15 lacs in respect of cast iron moulds. The disallowance has been<\/p>\n
set aside and the Tribunal has allowed the said depreciation. The<\/p>\n
fourth issue also pertains to disallowance of depreciation of<\/p>\n
Rs 6,11,145\/-, which had been claimed by the assessee in respect of<\/p>\n
rolls which were machinery items less than Rs 5,000\/- each on which,<\/p>\n
at the relevant point, 100% depreciation was allowable.<\/p>\n
3.           We have heard the learned counsel for the parties and have<\/p>\n
also examined the orders passed by the Assessing Officer, the<\/p>\n
Commissioner of Income Tax (Appeals) and the impugned order<\/p>\n
passed by the Tribunal. Insofar the first issue is concerned, we find<\/p>\n
that the Commissioner of Income Tax (Appeals) had considered the<\/p>\n
issue in detail and had found that one of the parties, namely, Sh. S. P.<\/p>\n
Garg and Mrs Raj Garg, who had introduced a sum of Rs 2 lacs by way<\/p>\n
of share capital, had appeared before the Assessing Officer and had<\/p>\n
furnished their returns of income. They had also filed copies of their<\/p>\n
ITA No. 458\/2007                                             Page No.2 of 8<\/span>
\n bank statements evidencing issuance of cheques to the assessee<\/p>\n
company towards share capital. Even the proof and details of dividend<\/p>\n
paid and tax deducted at source had been filed by the assessee. With<\/p>\n
regard to the other party, namely, Magadh Leasing and Finance Ltd,<\/p>\n
and the associate parties, Mr D. N. Sahai, Ms Sushila Sahai and Daya<\/p>\n
Engineering Works Ltd, who had collectively introduced share capital<\/p>\n
to the extent of Rs 16 lacs, it had been noticed that the assessee had<\/p>\n
furnished their permanent account numbers, places of their assessment<\/p>\n
and confirmations from them, before the Assessing Officer. The said<\/p>\n
information was also filed before the Commissioner of Income Tax<\/p>\n
(Appeals).         The amounts received from these shareholders were<\/p>\n
through cheques, which had been duly credited in the bank account of<\/p>\n
the assessee and these shareholders were also income tax assessees,<\/p>\n
who had also received dividends in respect of the shares. It was also<\/p>\n
noted that the assessee company had also filed tax deducted at source<\/p>\n
certificates along with bank statements to show the evidence of<\/p>\n
remittance of dividend. As regards the remaining shareholder, that is,<\/p>\n
Dr. S. P. Srivastava, it was noted that he was an NRI and the share<\/p>\n
capital of Rs 15 lacs received from him was through his NRE account<\/p>\n
maintained in ANZ Grindlaya Bank. The remittances were through<\/p>\n
three separate cheques, of which details were available. The assessee<\/p>\n
had also filed bank certificates submitted to the Reserve Bank of India<\/p>\n
ITA No. 458\/2007                                             Page No.3 of 8<\/span>
\n presumably for the purpose of remittance of dividend to the said<\/p>\n
Dr Srivastava.\n<\/p>\n<\/p>\n
4.           In the light of such evidence, the Commissioner of Income<\/p>\n
Tax (Appeals) as also the Tribunal had come to a conclusion of fact<\/p>\n
that the assessee had discharged the burden which lay upon it for<\/p>\n
establishing the identity of the shareholders as well as the genuineness<\/p>\n
of the transactions. As such, the Tribunal confirmed the findings of the<\/p>\n
Commissioner of Income Tax (Appeals) and deleted the addition of<\/p>\n
Rs 33 lacs which had been made by the Assessing Officer.             It is<\/p>\n
obvious that the findings returned by the Commissioner of Income Tax<\/p>\n
(Appeals) as well as the Tribunal are pure findings of fact and no<\/p>\n
question of law arises on this issue.\n<\/p>\n<\/p>\n
5.           As regards the second issue of alleged unexplained security<\/p>\n
deposits of Rs 35,06,292\/-, we find that the Tribunal, after examining<\/p>\n
the material on record as also the order passed by the Commissioner of<\/p>\n
Income Tax (Appeals), which was in favour of the assessee, came to<\/p>\n
the conclusion that the advances received from the customers by way of<\/p>\n
security deposits were duly accounted for in the lease rentals and were<\/p>\n
adjusted against the final sale price.      Consequently, the security<\/p>\n
deposits could not be regarded as unexplained cash credits. It may be<\/p>\n
noted that the security deposits were received from customers who<\/p>\n
ITA No. 458\/2007                                              Page No.4 of 8<\/span>
\n wished to purchase or take on hire, finance or lease any vehicle or plant<\/p>\n
or machinery from the assessee. The security deposits were either<\/p>\n
eventually refunded or adjusted against sale of the assets to the<\/p>\n
customers upon termination of the lease. The agreements which were<\/p>\n
entered into between the assessee and its customers, contained the<\/p>\n
period of lease, security deposit received, rate of interest, descriptions<\/p>\n
of the assets etc. The Commissioner of Income Tax (Appeals) noted<\/p>\n
that the assessee company had more than 1500 such customers from<\/p>\n
whom security deposits had been received and to whom assets had<\/p>\n
been leased as on 31.03.1994. Taking of security deposits from the<\/p>\n
customers was regarded as mandatory for the business as it provides a<\/p>\n
safety net and thus minimizes the risk of any possible default in<\/p>\n
payment of lease rentals by the customers. On termination of the lease<\/p>\n
the said security deposits are adjusted against the sale of the leased<\/p>\n
asset to the customers. The Commissioner of Income Tax (Appeals)<\/p>\n
also noted that for the subsequent assessment year 1995-1996 the<\/p>\n
Assessing Officer had thoroughly examined the issue of receipt of<\/p>\n
security deposits and was convinced about the genuineness and,<\/p>\n
therefore, did not make any addition on this account.         For all these<\/p>\n
reasons, we find that the Tribunal\u201fs conclusion confirming the findings<\/p>\n
of the Commissioner of Income Tax (Appeals) cannot be faulted. In<\/p>\n
any event, these are pure findings of fact and no question of law, much<\/p>\n
less a substantial question of law, arises on this aspect of the matter.<\/p>\n
ITA No. 458\/2007                                                 Page No.5 of 8<\/span>\n<\/p>\n
 6.           As regards the third issue with regard to disallowance of<\/p>\n
depreciation of Rs 15 lacs on cast iron moulds, we find that the<\/p>\n
Assessing Officer had proceeded on an entirely incorrect premise. The<\/p>\n
Assessing Officer had disallowed the depreciation claimed by the<\/p>\n
assessee on the ground that the lease agreement which had been signed<\/p>\n
on 29.03.1994 was to take effect from 29.04.1994 and, therefore,<\/p>\n
depreciation could not be allowed for the year in question which ended<\/p>\n
on 31.03.1994. The Commissioner Income Tax (Appeals), after going<\/p>\n
through the lease agreement dated 29.03.1994, categorically observed<\/p>\n
that the commencement date of the said lease agreement was<\/p>\n
29.03.1994.        However, the lease money was payable in monthly<\/p>\n
instalments with effect from 29.04.1994.       Both the Commissioner<\/p>\n
Income Tax (Appeals) as well as the Tribunal have concluded that the<\/p>\n
fact that the lease payments were to commence on 29.04.19994 did not<\/p>\n
make any difference to the fact that the lease, in fact, had commenced<\/p>\n
on 29.03.1994. Moreover, bills in respect of the cast iron moulds were<\/p>\n
dated 29.03.1994. The delivery challans were also prior to 31.03.1994.<\/p>\n
The Tribunal concluded that on the basis of these documents as also on<\/p>\n
the basis of the certificate given by the lessee (Shiva Glass Works Ltd),<\/p>\n
it was established that the cast iron moulds were put to use in the<\/p>\n
month of March, 1994 and, therefore, the depreciation was allowable in<\/p>\n
the year in question. This is also a finding of fact and the Tribunal has<\/p>\n
correctly concluded that the Assessing Officer had not appreciated that<\/p>\n
ITA No. 458\/2007                                              Page No.6 of 8<\/span>
\n the date of commencement of the payment was 29.03.1994 and not<\/p>\n
29.04.1994.        We may note in passing that in paragraph 19 of the<\/p>\n
impugned order there appears to be typographical error in the<\/p>\n
mentioning of the date in the following phrase:-<\/p>\n
             “……..the date of commencement was 29.04.1994.”<\/p>\n
Reading the context in which the said phrase appears, the date would<\/p>\n
be 29.03.1994 as has been held by the Commissioner of Income Tax<\/p>\n
(Appeals), which is noted in paragraph 16 of the impugned order itself.<\/p>\n
7.           The fourth issue with regard to disallowance of depreciation<\/p>\n
of Rs 6,11,145\/- has also been rightly set aside by the Commissioner of<\/p>\n
Income Tax (Appeals) as also the Tribunal. These are also findings of<\/p>\n
fact. The Tribunal has confirmed the following observations of the<\/p>\n
Commissioner of Income Tax (Appeals):-\n<\/p>\n<\/p>\n
             “7.1        It is also noticed that the appellant-\n<\/p>\n
             company has filed complete details regarding
\n             depreciation claim, including purchase vouchers,
\n             which categorically show that the said assets were
\n             purchased in financial year 1993-1994 and the
\n             rate per item is less than Rs 5,000\/-. Also the
\n             copy of the Lease Agreement entered into
\n             between the appellant company and M\/s Accurate
\n             Tubes Pvt. Ltd has also been filed, apart from
\n             tripartite agreement between the Allahabad Bank,
\n             the lessor and the lessee dated 18.03.1994.\n<\/p>\n
             Keeping in view the facts and circumstances of
\n             the case I have no hesitation in holding that the
\n             Assessing Officer has acted in an arbitrary
\n             manner in denying the deprecation claim on rolls.<\/p>\n
ITA No. 458\/2007                                                  Page No.7 of 8<\/span>
\n              The said claim of 100% is clearly admissible
\n             under the first proviso to Section 32 (1).”\n<\/p>\n
We see no reason to interfere with these findings.<\/p>\n
8.           No substantial question of law arises for our consideration.<\/p>\n
The appeal is dismissed.\n<\/p>\n<\/p>\n
                                    BADAR DURREZ AHMED, J<\/p>\n
                                         RAJIV SHAKDHER, J
\nOctober 15, 2008
\nSR<\/p>\n
ITA No. 458\/2007                                               Page No.8 of 8<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Commissioner Of Income Tax … vs Tulip Finance Ltd on 15 October, 2008 Author: Badar Durrez Ahmed THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 15.10.2008 + ITA 458\/2007 COMMISSIONER OF INCOME TAX DELHI- VI … Appellant – versus – TULIP FINANCE LTD … Respondent Advocates who appeared […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-39859","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nCommissioner Of Income Tax ... vs Tulip Finance Ltd on 15 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-tax-vs-tulip-finance-ltd-on-15-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Commissioner Of Income Tax ... vs Tulip Finance Ltd on 15 October, 2008 - 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