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Dow Chemical International Private Limited 1st Floor, Block B, Godrej IT Park, 02 Godrej Business District, Pirojeshanagar, Vikhroli (W), Mumbai-400 079 Vs. Addl. CIT, Range 10(2), Aayakar Bhavan, Mumbai
August, 21st 2015

        .  ,      ,                                 

                   ./I.T.A. No. 2403/Mum/2013
                  (   / Assessment Year: 2008-09)
Dow Chemical International Private      Addl. CIT, Range 10(2),
Limited                                 Aayakar Bhavan,
1st Floor, Block B, Godrej IT Park, / Mumbai
02 Godrej Business District,        Vs.
Pirojeshanagar, Vikhroli (W),
Mumbai-400 079
     . /  . /PAN/GIR No. AAACD 4467 B
        ( /Appellant)                       :           (    / Respondent)

      / Appellant by                       :     Shri M. P. Lohia
         /Respondent by                    :     Shri Sanjay Punglia

                        /                  :     19.05.2015
                 Date of Hearing
                                           :     19.08.2015
          Date of Pronouncement

                                   / O R D E R
Per Sanjay Arora, A. M.:
      This is an Appeal by the Assessee directed against the Order by the
Commissioner of Income Tax (Appeals)-21, Mumbai (`CIT(A)' for short) dated
11.12.2012, partly allowing the Assessee's appeal contesting its assessment u/s.143(3)
of the Income Tax Act, 1961 (`the Act' hereinafter) for the assessment year (A.Y.)
2008-09 vide order dated 26.12.2011.
                                                 ITA No. 2403/Mum/2013 (A.Y. 2008-09)
                                        Dow Chemical International Private Limited vs. Addl. CIT

2.    The only issue arising in the instant appeal, agitated per its sole ground no. 1, is
the disallowance of the deduction claimed u/s.37(1) of the Act qua lease payments of
computer during the year to IBM in the sum of `.15,64,817/- as capital expenditure.

3.    At the very outset, it was submitted by the ld. Authorized Representative (AR),
the assessee's counsel, that the same issue had arisen in the assessee's case for the
A.Y. 2006-07, whereat the Tribunal was pleased to restore the matter back to the file
of the Assessing Officer (A.O.) for fresh determination, taking us through the relevant
part of the said order (in ITA No. 7460/Mum/2010 dated 10.03.2015/PB pgs. 3 &
4/copy on record). The ld. Departmental Representative (DR) could not bring any
distinguishing feature in the assessment for the instant year, i.e., vis-a-vis that for the
A.Y. 2006-07, to our notice.

4.    We have heard the parties, and perused the material on record.
      We find that the A.O., relying on the decision in the case of Asea Brown Boveri
Ltd. vs. Industrial Finance Corporation of India [2006] 154 Taxmann 512 (SC),
whereat the Apex Court has held that in case of a financial lease it is the lessee, as the
assessee in the instant case, who is the owner of the asset for all practical purposes,
entitled to depreciation, and not the lessor, IBM in the instant case. That is, he has
proceeded on the basis that the lease under reference is a financial lease, in agreement
with the treatment accorded by the assessee to the relevant lease transaction in its
books of account. So, however, treatment in the books, though relevant, is not
conclusive. The tribunal for A.Y. 2006-07 has given a clear finding that the nature of
the lease needs to be examined in-as-much as there is no specific finding qua the
same, and which position obtains for the current year as well. Accordingly, as well as
for the sake of consistency, we only consider it fit and proper to restore the matter
back to the file of the A.O. to determine the issue afresh, as in the case for A.Y. 2006-
                                               ITA No. 2403/Mum/2013 (A.Y. 2008-09)
                                      Dow Chemical International Private Limited vs. Addl. CIT

07, in accordance with law, allowing the assessee a reasonable opportunity to present
its case before him. We decide accordingly.

5. In the result, the assessee's appeal is allowed for statistical purposes.

              Order pronounced in the open court on August 19, 2015

            Sd/-                                     Sd/-
       (D. Manmohan)                             (Sanjay Arora)
        / Vice President                          / Accountant Member
 Mumbai;  Dated : 19.08.2015
. ../Roshani, Sr. PS
        /Copy of the Order forwarded to :
1.  / The Appellant
2.      / The Respondent
3.     () / The CIT(A)
4.      / CIT - concerned
5.                 ,     ,   / DR, ITAT, Mumbai
6.     / Guard File
                                                   / BY ORDER,

                                         /  (Dy./Asstt. Registrar)
                                 ,   / ITAT, Mumbai
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