COMMISSIONER OF I T vs. BAID LEASING and FINANCE CO LTD

1 Income Tax Appeal No.116/2003 In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur J U D G M E N T D.B. Income Tax Appeal No.116/2003 Commissioner of Income Tax-I, Jaipur vs. M/s.Baid Leasing & Finance Company Ltd. DATE OF JUDGMENT. : 01/07/2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE DR. JUSTICE SMT. MEENA V. GOMBER Mr. J.K. Singhi, Sr. Counsel assisted by Mr. Anuroop Singhi, Mr. Saurabh Jain & Mr. Kushagra Sharma, for appellants. Mr. Sanjay Jhanwar & Mr. Atul Saxena, for respondent. Heard finally. 2. This Court, vide order dated 29th July, 2003 admitted this appeal on the following substantial questions of law:- 1.“Whether the learned Income Tax Appellate Tribunal, was right in law in allowing depreciation to the assessee in respect of the vehicles which were registered in the names of the purchasers and financed by the assessee under a hire purchase agreement?. 2.Whether on the facts and circumstances of the case the learned Income Tax Appellate Tribunal, was right in arriving at the conclusion that the assessee company was entitled to claim depreciation at the rate of 40%?”

2 Income Tax Appeal No.116/2003 3. Learned counsel for respondent/assessee raised an objection that appeal was admitted ex-parte, without hearing him and in view of sub-section (4) of Section 260A of the Income Tax Act, 1961, he has a right to submit that none of the questions, mentioned above, is involved in the present appeal. He submitted that present appeal was relating to lessor and lessee. The respondent-assessee was lessor and he claimed depreciation under Section 32(1) of the Income Tax Act (for short, “Act”), which was declined by Assessing Officer. Thereafter, an appeal was preferred before Commissioner of Income Tax (Appeals). The finding of the Assessing Officer was affirmed by Commissioner of Income Tax (Appeals), therefore, assessee preferred appeal before Income Tax Appellate Tribunal, Jaipur Bench, Jaipur. The Tribunal vide impugned order, allowed the appeal of the assessee. Hence, Revenue has preferred this Appeal. 4. Learned counsel for respondent further submitted that the question of hire-purchase was not involved in the present case, therefore, questions framed by this Court, while admitting the appeal, are not at all arise, in the facts and circumstances of the present case. He, therefore, submitted that order admitting the appeal on the aforesaid questions be

3 Income Tax Appeal No.116/2003 recalled and appeal be dismissed as no substantial question of law is involved in it. 5. Learned counsel for appellant/revenue fairly and frankly submitted that the question of hire-purchase is not involved in the present case, but the question regarding allowability of the depreciation under Section 32(1) of the Act to the lessor is involved. 6. We have considered the submissions of learned counsel for the parties and examined the order admitting this appeal as well as the impugned order passed by the Income Tax Appellate Tribunal. 7. From the submissions of learned counsel for the parties and the judgment of the Tribunal, it is clear that question relating to allowability of the depreciation under Section 32(1) of the Act is involved in the present case and not the question of hire-purchase. Learned counsel for appellant has fairly submitted that question involved in the present case be reframed. 8. After considering submissions of learned counsel for the parties and as agreed by them, we modify the order dated 29th July, 2003 and substitute/reframe the following substantial question of law in place of two

4 Income Tax Appeal No.116/2003 questions framed in the order dated 29/7/2003 :- “Whether respondent/assessee is entitled to get benefit of depreciation under Section 32 (1) of the Income Tax Act, 1961 or not?”. 9. The facts of the case are not in dispute between the parties. The assessee-company is engaged in the business of leasing the vehicles. The assessee claimed depreciation, being lessor of the vehicles. However, the same was disallowed by the Assessing Officer and the same was upheld by Commissioner of Income Tax (Appeals) also. Learned Income Tax Appellate Tribunal considered various aspects of the case and provisions of law and came to a conclusion that assessee was entitled to depreciation under Section 32(1) of the Act. 10. Learned counsel for respondent/assessee submitted that the controversy involved in the present case is fully covered by latest decision of Hon'ble Apex Court in Industrial Credit And Development Syndicate Limited vs. Commissioner of Income Tax, Mysore and Another, (2013) 3 SCC 541. He submitted that Hon'ble Apex Court in similar circumstances allowed depreciation under Section 32(1) of the Act to lessor. He also submitted that Hon'ble Apex Court has also held that lessor is owner and, therefore, is entitled for depreciation under Section 32(1) of the Act.

5 Income Tax Appeal No.116/2003 11. Learned counsel for appellant submitted that the judgment of Hon'ble Apex Court is distinguishable as in the said case the depreciation was not allowed to lessee, therefore, the Hon'ble Apex Court has allowed depreciation to lessor. 12. We have considered the submissions of learned counsel for the parties. 13. The Hon'ble Apex Court in Industrial Credit And Development Syndicate Limited (supra) case considered the case of assessee, who was public limited company, classified by Reserve Bank of India (RBI) as a non- banking finance company. It was engaged in the business of hire purchase, leasing and real estate etc. The vehicles, on which depreciation was claimed, are stated to have been purchased by the assessee against direct payment to the manufacturers. The assessee, as a part of its business, leased out these vehicles to its customers and thereafter, had no physical affiliation with the vehicles. In fact, lessees were registered owners of the vehicles, in the certificate of registration issued under the Motor Vehicles Act, 1988 (hereinafter referred to as “the MV Act”). The assessee claimed depreciation,

6 Income Tax Appeal No.116/2003 which was disallowed by Assessing Officer on the ground that the assessee's use of these vehicles was only by way of leasing out to others and not as actual user of the vehicles in the business of running them on hire. It had merely financed the purchase of these assets and was neither the owner nor user of these assets. The Commissioner of Income Tax (Appeals) affirmed the finding of the Assessing Officer. Thereafter, assessee preferred appeal before the Income Tax Appellate Tribunal, but the same was also dismissed. Thereafter assessee preferred appeal by way of Special Leave Petition before Hon'ble Apex Court. In para 8 of the judgment, the Hon'ble Apex Court referred the substantial questions of law, which were framed by High Court for its adjudication. Para 8 of the judgment is reproduced, as under :- “8. Being aggrieved, the revenue preferred an appeal to the High Court under Section 260A of the Act. The High Court framed the following substantial questions of law for its adjudication: 8.1 Whether the appellant (assessee) is the owner of the vehicles which are leased out by it to its customers? and 8.2 Whether the appellant (assessee) is entitled to the higher rate of depreciation on the said vehicles, on the ground that they were hired out to the Appellant's customers”. 14. The Hon'ble Apex Court considered the various judgments, the dictionary meaning of the word

7 Income Tax Appeal No.116/2003 “owner”, the provisions of Income Tax Act and the Motor Vehicles Act and answered both the questions framed in para 8 in favour of assessee and against the revenue. Para 34 of the judgment of the Apex Court is reproduced, as under :- “For the foregoing reasons, in our opinion, the High Court erred in law in reversing the decision of the Tribunal. Consequently, the appeals are allowed; the impugned judgments are set aside and the substantial questions of law framed by the High Court, extracted in para 8 (supra), are answered in favour of the assessee and against the Revenue. There will, however, be no order as to costs”. 15. It is also relevant to mention that the Hon'ble Apex Court has considered two submissions of Revenue regarding owner of the vehicle and use of the vehicle in the course of its business and both the submissions were negatived by the Hon'ble Apex Court. Para 15 and 16 of the judgment are reproduced, as under :- 15. The Revenue attacked both legs of this portion of the section by contending: (i) that the assessee is not the owner of the vehicles in question and (ii) that the assessee did not use these trucks in the course of its business. It was argued that depreciation can be claimed by an assessee only in a case where the assessee is both, the owner and user of the asset. 16. We would like to dispose of the second contention before considering the first. The Revenue argued that since the lessees were actually using the vehicles, they were the ones entitled to claim depreciation, and not the assessee. We are not persuaded to agree

8 Income Tax Appeal No.116/2003 with the argument. The section requires that the assessee must use the asset for the "purposes of business". It does not mandate usage of the asset by the assessee itself. As long as the asset is utilised for the purpose of business of the assessee, the requirement of

Section 32 will

stand

satisfied, notwithstanding non-usage of the asset itself by the assessee. In the present case before us, the assessee is a leasing company which leases out trucks that it purchases. Therefore, on a combined reading of Section 2 (13) and Section 2(24) of the Act, the income derived from leasing of the trucks would be business income, or income derived in the course of business, and has been so assessed. Hence, it fulfills the aforesaid second requirement of Section 32 of the Act viz. that the asset must be used in the course of business”. 16. The Hon'ble Apex Court also considered that the lessor is owner of the Vehicle. Section 2(30) of the Motor Vehicles Act was also considered for the purpose of registered owner of the vehicle. Relevant paragraphs i.e. paras 23, 27, 29 and 31 are also reproduced, as under:- 23. A scrutiny of the material facts at hand raises a presumption of ownership in favour of the assessee. The vehicle, along with its keys, was delivered to the assessee upon which, the lease agreement was entered into by the assessee with the customer. Moreover, the relevant clauses of the agreement between the assessee and the customer specifically provided that: (i) The assessee was the exclusive owner of the vehicle at all points of time; (ii) If the lessee committed a default, the assessee was empowered to re-possess the vehicle (and not merely recover money from the customer);

9 Income Tax Appeal No.116/2003 (iii) At the conclusion of the lease period, the lessee was obliged to return the vehicle to the assessee; (iv) The assessee had the right of inspection of the vehicle at all times. 27. The only hindrance to the claim of the assessee, which is also the lynchpin of the case of the Revenue, is Section 2(30) of the MV Act, which defines ownership as follows: "2.(30) 'owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of a hypothecation, the person in possession of the vehicle under that agreement;” The general opening words of the Section say that the owner of a motor vehicle is the one in whose name it is registered, which, in the present case, is the lessee. The subsequent specific statement on leasing agreements states that in respect of a vehicle given on lease, the lessee who is in possession shall be the owner. The Revenue thus, argued that in case of ownership of vehicles, the test of ownership is the registration and certification. Since the certificates were in the name of the lessee, they would be the legal owners of the vehicles and the ones entitled to claim depreciation. Therefore, the general and specific statements on ownership construe ownership in favour of the lessee, and hence, are in favour of the Revenue. 29. Finally, the learned Senior Counsel appearing on behalf of the assessee also pointed out a larger number of cases, accepted and unchallenged by the Revenue, wherein the lessor has been held as the owner of an asset in a lease agreement. [CIT v. A.M. Constructions, CIT v. Bansal Credits Ltd., CIT v. M.G.F. (India) Ltd., CIT v. Annamalai Finance Ltd.] In each of these cases, the leasing company was held to be the owner of the asset, and accordingly held entitled to claim depreciation and also at the higher rate applicable on the asset hired out. We are in complete agreement with these decisions on the

10 Income Tax Appeal No.116/2003 said point. 31. Therefore, in the fact of the present case, we hold that the lessor i.e. the assessee is the owner of the vehicles. As the owner, it used the assets in the course of its business, satisfying both requirements of Section 32 of the Act and hence, is entitled to claim depreciation in respect of additions made to the trucks, which were leased out”. 17. From the submissions of learned counsel for the parties, the facts and reasons assigned in the judgment of the Tribunal, it is clear that Hon'ble Apex Court has held that lessor is an owner and thus is entitled to depreciation under Section 32(1) of the Act, and the present case is fully covered by decision of Hon'ble Apex Court in case of Industrial Credit And Development Syndicate Limited (supra) and, therefore, question framed above is answered in favour of assessee and against the revenue. 18. In view of above, we do not find any merit in this appeal and the same is, accordingly, dismissed with no order as to costs.

(Dr. MEENA V. GOMBER),J.

(NARENDRA KUMAR JAIN),J. Sanjay S.No. 37 “All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.” Sanjay Solanki JUNIOR PERSONAL ASSISTANT.