1998 PLP 3713 (PTD)

1960 Sri K.K. Singh Maneri, Moradabad 21-6-67 48,080 4. 592 UPN 1149 1969 M. K. Singh, Katighar, Moradabad 13-5-67 51,000 Similarly, during the accounting period corresponding to the assessment year 1969-70, it is alleged that the following vehicles were taken into possession by the assessee-company on account of default in payment by the hire purchasers detailed in the chart given below: Vehicles repossessed in the accounting year 1968-69 (assessment year 1969-70) 1. 475 USU 466 1962 Mahendra Bahadur Singh Lalganj, Raibareilly 30-9-68 3,693 2. 578 USH 1313 1963 Shri Trilochan Singh, Golagokarannath, Keri 19-5-68 16,702 3. 729 UPD 3582 1966 Vill Purey Pandey, P.O. Lakshmanpur, Paratapgarh 14-3-69 12,529 Thus, the assessee-company estimated the possible loss on the above repossessed vehicles to the sum of Rs.1,10,000 in respect of the assessment year 1968-69 and Rs.10,000 in respect of the assessment year 1969-70 and accordingly these amounts were debited to the profit and loss account by the company and were claimed as legitimate expenditure. The Income-tax Officer disallowed the aforesaid claim. However, in appeal, the Appellate Assistant Commissioner accepted the said claim of the assessee, against which the Revenue preferred an appeal before the Tribunal. The Tribunal while allowing the appeal, came to the conclusion that at the relevant time the vehicles were registered in the office of the Regional Transport Authority in the names of the hirers and only on account of non- payment of instalments by the hire-purchasers, the assessee took repossession of the vehicles. Thus, according to the Tribunal, the vehicles belong to the assessee and form part of stock-in-trade till actually they were handed over to the hire-purchasers. Thus, the short controversy was whether the assessee-company is the real owner of the vehicles and, if so, whether the vehicles constitute a part of the stock-in-trade or whether it is a case of money-lending simpliciter and the claim of the assessee for deduction of the losses under consideration could be allowed as a bad debt. Learned counsel for the Revenue, Sri Ashock Kumar, submits that since the vehicles at the relevant time were registered in the names of the hire-purchasers, the vehicles cannot be taken into consideration as belonging to the assessee forming part of the stock-in-trade and, therefore, the claim as set up by the assessee is not maintainable being contrary to the provisions of section 36 read with section 28 of the Act. This factual, position is not under dispute that the vehicles in question were registered in the names of the hire-purchasers in accordance with the provisions of section 24 of the Motor Vehicles Act, 1939. Thus, in the eyes of law, it must be deemed that the assessee was not the owner of the vehicles and this fact is based on documentary evidence and it is a finding of fact that the assessee was not the owner of the vehicles even at the relevant time of repossessing the same. Thus, the legal position, which emerges is that the vehicles cannot be construed to be the assessee's stock-in-trade, and hence the question of any loss in revaluation of the said vehicles does not arise. In S.P.B.P. Srirangacharyuhu v. CIT (1965) 58 ITR 95 (AP), it is ruled that if the vehicle at the relevant time is registered in the name of the hire-purchasers, the same cannot be construed to be a part of the stock-in-trade of the financier and the financier assessee cannot take any advantage of the depreciated value of the vehicle. The Tribunal has reached the conclusion that though the assessee's business is that of financing trucks on hire purchase basis, actually it is a money-lending business and as such any loss occasioned to the assessee on account of non-recovery of instalments financed by it, would be a loss incidental to its money-lending business, and, therefore, it must be allowed under section 36(1)(vii) read with section 36(2) as a bad debt. Accordingly, the Tribunal, while setting aside the order of the Assistant Commissioner, held that the loss caused to the assessee is not a trading loss claiming deduction under section 28 of the Act. However, according to the Tribunal, the assessee's claim comes under section 36(1)(vii) read with section 36(2) of the Act and accordingly benefit was given to the assessee holding that it is a bad debt and that debt became bad in the previous year, i.e., the trucks in question constituted the capital asset of the assessee and are entitled to get depreciation on the same. However, since the legal position as discussed above emerged that the vehicles cannot be construed to be the assessee's stock-in-trade, therefore, the question of any loss in revaluation of the said vehicles does not arise, and S.P.B.P. Srirangacharyuhu (1965) 58 ITR 95 (AP), applies with full force since the vehicles at the relevant time were registered in the names of the purchasers. Thus, from the discussion aforesaid, the assessee is not entitled to deduction in respect of the assessment years 1968-69 and 1969-70. This being so, the reference is answered in the affirmative and against the assessee. M.B.A./1866/FC Reference answered in affirmative