Per R.K. Gupta, Judicial Member: These are two appeals by assessee and department against order of CIT(A) relating to assessment year 1995-96. 2. Similar issues are involved in all these appeals, therefore, for sake of convenience, they are disposed of by this single order. 3. First we shall take up appeal of assessee in ITA No. 3536/Mum./99. 4. As many as 30 grounds of appeal have been taken by assessee w h i l e filing appeal on 25-6-1999. Thereafter assessee has filed summarized grounds of appeal vide letter dated 12-5-2006 which are 18 in number. assessee has also filed chart of grounds wherein dispute, amount, para No., and page No. along with reasons given by Assessing Officer and CIT(A) have been mentioned. In remarks column comments/contentions along with citation have been mentioned and it has been further clarified that some of issues are covered either in favour of assessee or in favour of department. Some of grounds are not pressed and in remarks column it has been mentioned as not pressed. It was submitted by ld. AR that summarized grounds and issues shown in chart are in consonance with grounds taken originally at time of filing of appeal, therefore, summarized grounds may be taken into consideration. 5. Ground 1A is against disallowance under Rule 6D at Rs. 1,47,165. 6. It has been stated in chart that this issue has to be decided against assessee in view of decision of Bombay High Court in case of CIT v. Aorow India Ltd. [1998] 229 ITR 325. Therefore, same is decided against assessee. 7. Ground 2B is against disallowance under section 37(2A) at Rs. 3,84,986. 8. This issue has to be decided against assessee, as same was not pressed during course of hearing. Accordingly, this ground is dismissed. 9. Ground 3C is against disallowance of earlier year's expenditure at Rs. 18,94,929. 10. Similar addition was made and upheld by CIT(A) in earlier years. Tribunal while deciding appeal for assessment years 1992-93 to 1994- 95, 1996-97 and 1997-98 has allowed similar ground. Therefore, we direct Assessing Officer to modify his order in this regard in view of decision of Tribunal for earlier years as well as subsequent year. 11. Ground 4D is against disallowance of capital expenditure at Rs. 3,08,357. 12. This issue has to be decided against assessee, as same was not pressed during course of hearing. Accordingly, this ground is dismissed. 13. Ground 5E is against disallowance under section 37(4). 14. This issue has to be decided against assessee in view of decision of Supreme Court in case of Britannia Industries Ltd. v. CIT [2005] 278 ITR 546. Therefore, same is decided against assessee. 15. Ground Nos. 6F, 7G, 8H and 10J which are in regard to disallowance o f depreciation as per revised return, additions of write-backs previous years sought to be taxed, disallowance under section 37(1) and deduction under section 36(1)(viia) were not pressed and, therefore, these grounds are dismissed as not pressed. 16. Ground No. 11K, which is in regard to deduction under section 36(1)(viii). 17. This issue has to be decided against assessee as on similar facts Tribunal decided issue against assessee for assessment year 1986- 87. Therefore, same is decided against assessee. 18. Ground No. 9-I is against disallowance of expenses while computing deduction under section 80M at Rs. 32,70,717. 19. Assessing Officer held that deduction under section 80M is to be allowed on net dividend income after reducing estimated expenses for earning dividend i.e. at rate of 1 per cent of gross dividend as per past years. CIT(A) held that proportionate management expenses to be deducted from gross dividend as per Supreme Court decision in case of United General Trust Ltd. Thus expenses estimated at rate of 1 per cent of gross dividend made by Assessing Officer were upheld by CIT(A). 20. Similar disallowances were made by Assessing Officer for assessment years 1989-90 and 1990-91. Tribunal while deciding appeal for assessment years 1989-90 held that 1 per cent of salary only be considered as expenses for earning dividend. However, while deciding appeal for assessment year 1990-91, Tribunal upheld expenses estimated at 1 per cent for earning dividend. Now, it was submitted by ld. counsel of assessee that Bombay High Court has held that no disallowance can be made while computing deduction under section 80M. This decision was rendered by Bombay High Court in case of CIT v. Emerald Co. Ltd. [2006] 284 ITR 586. Further reliance on decision of Bombay High Court in case of CIT v. General Insurance Corpn. of India (No. 1) [2002] 254 ITR 203 and in case of State Bank of Indore v. CIT [2005] 275 ITR 23 (MP). On other hand, ld. DR placed reliance on orders of authorities below. 21. After considering submissions and perusing material on record we find that this issue is covered by decision of Bombay High Court in ease of Emerald Co. Ltd. (supra) wherein it has been held:that interest o n overdraft and expenses were related to business of trading in shares and ought to be allowed as computed income under head 'business'. said expenses could not once again be deducted from dividend income for limited purpose of computing deduction under section 80M of Act. There was no statutory provision requiring Assessing Officer to deduct same expenses under different heads of income. Since income by way of dividend included in gross total income was Rs. 1,34,984 deduction under section 80M had to be granted with reference to said amount of Rs. 1,34,984.' 22. In view of decision of Bombay High Court, we are of view that no disallowance on account of expenses can be made while computing deduction under section 80M. We have seen order of Tribunal also in case of assessee itself and found that decision of Bombay High Court was not cited, therefore, same could not be taken into consideration. With utmost respect and in view of decision of Bombay High Court, we are taking this view that no disallowance can be made under section 80M. We order accordingly. 23. Ground No. 12D is against charging of interest under section 234B at Rs. 11,75,39,064. 24. ground against levy of interest under section 234B was raised before CIT(A). However, ld. CIT(A) dismissed ground by observing that interest under section 234B is mandatory and, therefore, same is not appealable. CIT(A) has further observed that various Courts have held that no appeal lies against levy of interest as appeal is creation of statute and assessee can claim right of appeal only if he can bring his claim within fold of section 246. 25. ld. counsel, who appeared before Tribunal stated that assessed tax is more than advance tax due to certain addition/disallowances which could not have been foreseen when advance tax was paid. It was further submitted that on facts of present case, these provisions are not attracted and no interest can be levied for alleged default due to variations made in assessment order beyond envisaged or provided under Act. Reliance was placed on decision of Hon'ble Uttaranchal High Court in case of CIT v. Sedco Forex International Drilling Co. Ltd. [2003] 264 ITR 320. On other hand, ld. DR placed k reliance on order of CIT(A). 26. After considering submissions and perusing material on record, w e find that assessee has not challenged quantum of interest but has challenged chargeability of interest under section 234B itself. Supreme Court in case of Central Provinces Manganese Ore Co. Ltd. v. CIT [1986] 160 ITR 961 has held that where chargeability of interest itself challenged then t h e same is appealable. As stated above, assessee has challenged chargeability of interest under section 234B; therefore, issue has to be decided on merit. ld. counsel of assessee has placed reliance on decision of Hon'ble Uttaranchal High Court that on similar circumstances High Court has held that interest under section 234B cannot be charged. Since no decision has been given by CIT(A) on merit, therefore, we set aside this issue to file of ld. CIT(A) to decide same afresh on merit after affording opportunity of being heard to assessee and after taking into consideration provisions of law as well as decision of Hon'ble Uttaranchal High Court in case of Sedco Forex International Drilling Co. Ltd. (supra). We order accordingly. 27. remaining grounds i.e. ground Nos. 13M and 14N, which relates to disallowance of depreciation on sale and lease back of assets (SLB) to Gujarat Electricity Board (GEB) and Rajasthan State Electricity Board (RSEB) and on other assets leased during year under consideration respectively. 28. Since both these grounds are inter-linked, therefore, for sake of convenience, they are disposed of together. 29. Briefly stated facts of case are that during course of assessment proceeding, Assessing Officer noticed that assessee has claimed depreciation of Rs. 2,78,46,90,877 by filing return of income. In revised statement, depreciation claimed was at Rs. 2,78,99,16,523. reason f o r revising depreciation claim was given by assessee that certain additions were made in assessment year 1993-94. Thus, these additions were confirmed by CIT(A). Although additions still being disputed before Tribunal, it has revised statement on basis of addition made in earlier years. This contention of assessee was not accepted by Assessing Officer. Therefore, depreciation claimed in original return was only taken into consideration by Assessing Officer for purpose of allow ability of same. Assessing Officer further noted that in earlier year, assessee has claimed depreciation on boiler plant auxiliaries worth Rs. 175 crores purchased from GEB and, same were leased back to GEB. Assessing Officer further noticed that similarly assessee has purchased assets from RSEB in earlier year i.e. assessment year 1994-95 and they were leased back to RSEB. case was examined in earlier year in detail and claim of assessee of 100 per cent depreciation was negated by holding that transactions were of loan transaction. Assessing Officer further noticed that in similar manner, claim of assessee was negated for assessment year 1993-94 also. In view of past history, Assessing Officer disallowed depreciation claim of 100 per cent on assets purchased from two Boards i.e. GEB and RSEB. Since claim of assessee was disallowed by Assessing Officer on account of assets leased out to these Electricity Boards were excluded from total income of assessee because Assessing Officer has treated transaction as loan transaction and interest component on these transactions was taxed only by Assessing Officer. total depreciation disallowed on account of allegedly leased to GEB and RSEB was at Rs. 106.50 crores. CIT(A) upheld order of Assessing Officer on ground that sale and leased back transaction with GEB and RSEB are in fact loan transactions. By further observing that assessee-company was not owner of assets and hence it was not entitled to depreciation, order of Assessing Officer denying depreciation at Rs. 106.50 crores was upheld. Thereafter, CIT(A) examined issue in regard to remaining claim of depreciation i.e. on other items leased out during year under consideration. After considering details and submissions, CIT(A) found that assessee is not entitled to any depreciation under section 32 as assets are not owned by it but was for purpose of security against loan given to parties in course of financing transactions. Accordingly, Assessing Officer was directed to disallow claim of depreciation on other items claimed during year under consideration.30. Firstly, ld. AR who appeared before Tribunal reiterated contentions raised before lower authorities. Thereafter, ld. counsel Shri S.E. Dastur, Sr. Advocate stated that though there is decision of Special Bench of Tribunal in case of Mid East Portfolio Management Ltd. v. Dy. CIT [2003] 87 ITD 537 (Mum.) (SB) where assessee was also one of parties and Special Bench, has decided issue against assessee but Hon'ble Rajasthan High Court in case of CIT v. Rajasthan State Electricity Board [2006] 160 TAXMAN 19 has held that transactions entered into between RSEB with ICICI Bank (the assessee) are genuine and lease rental paid by RSEB has to be allowed as deduction. Therefore, it was submitted that now issue is squarely covered by decision of Rajasthan High Court in favour of assessee. Further reliance was placed on decision of Hon'ble Calcutta High Court in case of S.B.I. Home Finance Ltd. v. CIT [2006] 280 ITR 6 and on decision of Bombay High Court in case of Prakash Industries. (Copies of these decisions are placed on record). Thereafter, ld. counsel of assessee made lengthy arguments and attention of Bench was drawn on various pages of compilation. It was further submitted that if department's stand is allowed then nobody will be entitled for depreciation i.e. either lessee or lessor, which is against provisions of law. It was further submitted that assessee, who is in banking industry, is in regular business of leasing of assets since long i.e. about 23 years. It was further submitted that bank has entered into 700 agreements pertaining to loan transaction, which involves about 7000 equipments. It was further submitted that up to assessment year 1992-93, department itself has allowed claim of assessee regularly. transaction in past and transaction after 1992-93 are identical. However, from assessment year 1993-94 onwards department is taking different view, which is against rule of consistency. It was kly stated that Assessing Officer disallowed claim of only one item during assessment year 1993-94 and for assessment year 1995-96 only on two items. However, ld. CIT(A) has disallowed claim on entire items. Neither factual position of entire assets were examined nor lease agreement which were in voluminous as they were 700 in number, were seen by CIT(A). ld. CIT(A) has taken general view that all these agreements are nothing but to secure itself against loan amount advanced by assessee. approach of ld. CIT(A) should not be and cannot be upheld as assessee who is involved in regular business transaction of lease since long. Attention of Bench was drawn on various portions of decision of Bombay High Court in case of Development Credit Bank Ltd. v. Prakash Industries Ltd. [Notice of Motion No. 2346 of 1998 in Suit No. 3196 of 1998 dated 16-9-1998] and decision of Calcutta High Court in S.B.I. Home Finance Ltd.'s case (supra). It was further submitted that SLP against decision of Bombay High Court has been dismissed by Supreme Court. Attention of Bench was also drawn on copy of order placed in paper book. 30.1 It was further submitted that over 50 per cent of total capital is held by financial institution and UTI. assessee-company is not private company of few persons. This is Banking company, where public are substantially interested. Therefore, it is not so simple to say that assessee- company was indulging collusive transaction with various parties including Government institutions i.e. GEB and RSEB. assessee is owner of assets, which were leased out, and there should not be no dispute in respect of genuineness of transaction with GEB and RSEB as they have confirmed this fact. Both Boards were paying lease rent regularly and same has been offered for taxation. It was further submitted that from day one assessee's stand is that these are lease agreements, however, department is saying that these are loan agreements. Neither there is any evidence nor there is any other information with department to treat these transactions as loan. It was further submitted that department has relied upon decision of Apex Court in case of McDowell & Co. Ltd. v. CTO [1985] 154 ITR 148. However, ratio in case of McDowell & Co. Ltd. (supra) has been considered by Apex Court in case of Azadi Bachao Andolan v. Union of India [2003] 263 ITR 706 wherein it has been clearly laid down that without bringing any k evidence on record, contention of assessee cannot be negated merely by saying that this is colourable device. It was further explained that after decision of Special Bench in case of Mid-East Portfolio Management Ltd. (supra), various Benches have passed further orders and after taking into consideration decision of Mid-East Portfolio Management Ltd.'s case (supra), on similar facts, claim of assessee has been allowed by Tribunal. It was further submitted that Chennai Bench, in case of Jt. CIT v. Investment Trust of India Ltd. [2006] 102 ITD 135 (TM) has taken view that on leased back transaction (LSB), claim of assessee is allowable. It was further stated that one of member who was party in case of Mid East Portfolio Management Ltd. (supra), was also party to decision in Chennai Bench who decided issue in favour of assessee. Attention of Bench was drawn on copy of order of Chennai Bench. It was further explained that Explanation 4A to section 43(1) which was brought on statute with effect from October 1996 supports case of assessee. Attention of Bench was also drawn on various case laws mentioned in chart available on record of Bench. 30.2 ld. DR on other hand placed k reliance on orders of authorities below. Further reliance was placed on decision of Special Bench in case of Mid East Portfolio Management Ltd. (supra). It was further submitted that decisions on which reliance has been placed by ld. AR have already taken into consideration by Special Bench in case of Mid- East Portfolio Management Ltd. (supra). It was further submitted that in case of Mid-East Portfolio Management Ltd. (supra), assessee was one of parties. Therefore, in view of consistency, decision of Special Bench, which is binding in nature, should be followed. Further reliance was placed on decision in Avasarala Automation Ltd. v. Jt. CIT [2004] 266 ITR 178 (Kar.) and CIT v. Goodlass Nerolac Paints Ltd. [1991] 188 ITR 1 (Bom.). 30.3 In reply, ld. counsel of assessee again explained facts once again and stated that there was constructive delivery in present case and after decision of Mid-East Portfolio Management Ltd.'s case (supra) and decision in Avasarala Automation Ltd.'s case (supra) there are further developments as now Hon'ble Rajasthan High Court who after taking into consideration decision of Special Bench in case of Mid-East Portfolio Management Ltd. (supra) held that these transactions are genuine. various Benches of Tribunal have taken contrary view to view taken in case of Mid-East Portfolio Management Ltd. (supra). Therefore, rule of consistency is in favour of assessee because in subsequent developments similar issue has been decided in favour of assessee. 31. We have heard rival submissions and considering them carefully. We have also perused all relevant material on which our attention were drawn by respective parties along with various case laws relied upon. 32. ld. Departmental representative has kly stated that issue has already been decided by Special Bench in which assessee was one of intervener. Special Bench in case of Mid-East Portfolio Management Ltd. (supra) has held that transactions of lease buy-back were not genuine and ratio of decision in case of McDowell & Co. Ltd. (supra) is applicable. We find that decision of Special Bench in case of Mid-East Portfolio Management Ltd. (supra) have been considered by Hon'ble Rajasthan High Court in case of Rajasthan State Electricity Board (supra) and held that transaction entered into between RSEB and ICICI (the assessee) are genuine. T h e lease rent paid by RSEB was allowed as deduction by Hon'ble Rajasthan High Court. In that case Assessing Officer held that sale of lease back transaction were sham in light of McDowell & Co. Ltd.'s case (supra). CIT(A) upheld decision of Assessing Officer. However, Tribunal allowed appeal of RSEB. Hon'ble High Court observed that transaction of sale took place between parties as Arm's length. Hon'ble High Court has also observed that Explanation 4A to section 43(1) which was introduced by Legislature with effect from 1-10-1996 in order to curb claim of higher depreciation in cases where assets had been sold and acquired by assessee by way of hire, lease or otherwise. Hon'ble Rajasthan High Court has taken into consideration decision of Hon'ble Karnataka High Court in case of Avasarala Automation Ltd. (supra) relied upon by ld. DR. decision of Special Bench in case of Tej International (P.) Ltd. v. Dy. CIT [2000] 69 TTJ (Delhi) 650 was also taken into consideration by Hon'ble Rajasthan High Court wherein it has been observed that -once authority higher than Tribunal has expressed opinion on issue before Tribunal, it is not permissible for it to rely upon contrary decision by Tribunal included by Special Bench. fact that judgment was rendered by High Court other than jurisdictional High Court does not alter position'. 32.1 Therefore, now circumstances has been changed as decision of Special Bench in case of Mid-East Portfolio Management Ltd. (supra) has already been distinguished and considered by Hon'ble High Court, therefore, we are not inclined to consider that decision at this point of time. 32.2 In case of CIT v. George Williamson (Assam) Ltd. [2004] 265 ITR 626, it has been held by Hon'ble Guwahati High Court that actual delivery does not mean physical possession of assets. symbolic delivery has taken place as per agreement. It is valid delivery/sale as per that definition of delivery of goods in section 33 of Sale of Goods Act, 1930. After definition of delivery of goods in section 33 of Sale of Goods Act, 1930. After observing these observations, Hon'ble High Court has held that assessee's Board and lessor with various companies had entered into genuine agreement. Accordingly, claim of assessee was allowed by Hon'ble High Court. 32.3 ld. counsel has rightly placed reliance on Explanation 4A(2) section 43(1) of Act, Board circular No. 762 dated 18-2-1998 reported in 230 ITR 12, 31 ST that this Explanation was introduced in order to curb higher claim of depreciation by lessor. In order to curb such transaction, amendment had been made to deal with case where assets had been sold and acquired by any assessee by way of hire, lease or otherwise. In such case actual cost for purpose of deduction of depreciation allowance shall be taken to written down value at time of transaction of assets in hands of seller but subsequently acquired assets by way of hire, lease or otherwise. Explanation 4A section 43(1) support case of assessee. Legislature is well aware of such type of transaction and to curb higher depreciation, this Explanation was introduced to section 43(1) with effect from 1-10-1996, therefore, it cannot be said in any way that sale of lease back transactions are not genuine transactions. 32.4 Hon'ble Orissa High Court in case of Industrial Development Corpn. of Orissa Ltd. v. CIT [2004] 268 ITR 130 has allowed depreciation under section 32 of Act on account of purchase and lease back of assets. While allowing claim of depreciation under section 32 Hon'ble High Court has observed that there was no evidence which suggested that transactions were not genuine. In that case also lessor entered into purchase-cum lease agreement with Orissa State Electricity Board for generation, distribution and supply of Electricity and there was no finding, evidence or material that findings of Tribunal was based only on conjecture, suspicion and surmises and was otherwise perverse. Accordingly transaction of sale and lease back were held as genuine and depreciation was allowed. decision of Hon'ble Orissa High Court has been further fortified by Hon'ble Guwahati High Court in case of George Williamson (Assam) Ltd. (supra). In said judgment, decision of Hon'ble High Court, in case of Azadi Bachao Andolan (supra) by which decision of Hon'ble Madras High Court in case of M.V. Valiappan v. ITO [1988] 170 ITR 238 was approved. 32.5 In case of M.V. Valiappan (supra) Hon'ble Madras High Court had held that decision in case of McDowell & Co. Ltd. (supra) cannot be read as laying down that every attempt at tax planning is illegitimate and must be ignored or with every transaction or arrangement, which is perfectly permissible under law, which has effect of reducing tax burden or assessee must be looked upon with disfavour. In view of aforesaid legal principle laid down by Hon'ble Supreme Court, it is clear that principle laid down by IRC v. Duke of Westminster [1936] AC 1 (HL) are still applicable in this country and it is open to assessee to arrange their affairs in such manner that it would not attract tax liability, if it cannot be managed within permissible liability of law. As stated above, in this decision decision in case of McDowell & Co. Ltd. (supra) have considered. Thereafter in case of Azadi Bachao Andolan (supra) Hon'ble Supreme Court has approved decision of Madras High Court. Therefore, with utmost respect regarding decision of McDowell & Co. Ltd.'s case (supra), we are of considered view that in each and every case it cannot be said that transactions are malafidely and are not genuine, therefore, depreciation should not be allowed to assessee. In present case transactions were entered into with Electricity Boards and these Boards are Government bodies, therefore, there cannot be any scope for collusion. 32.6 Hon'ble Calcutta High Court in case of Competent Authority v. Smt. Bani Roy Chowdhury [1981] 131 ITR 578 has held that:where transferor or transferee is Government or statutory body, there cannot be any scope for such collusion between parties. untrue statement about agreed consideration is made only for purpose of evasion of tax. When Government or statutory body is party to transfer, question of evasion of tax does not arise. If presumption under clause (b) of section 269C(2) is applied, it will mean that untrue statement regarding agreed consideration is made also at instance of Government or statutory body which is absurd.' 32.7 In case of S.B.I. Home Finance Ltd. v. CIT [2006] 280 ITR 6 Hon'ble Calcutta High Court has held that transactions were genuine. In this case Finance Company had entered into lease agreement, which was not accepted by Departmental Authority as genuine transaction and claim of t h e depreciation was negative. Hon'ble High Court has held that even though premises of lease given to 3rd party option to purchase property right to such option does not affect ownership of lessor and lessor was, accordingly, entitled to depreciation. 32.8 We have also seen decision of Bombay High Court in case of Developmental Credit Bank Ltd. (supra) wherein, Hon'ble Bombay High Court after examining clauses of lease agreement had come to conclusion that lessor bank and purchased machinery as owner of asset and was leased to lessee based on terms and conditions which was to be returned to lessor bank on expiry of lease. lessee do not have any ownership rights in respect of lease equipments and Hon'ble Bombay High Court has held that lessor is owner and, therefore, is entitled for depreciation. Though, this decision of Hon'ble Bombay High Court was taken into consideration by Special Bench in case of Mid-East Portfolio Management Ltd. (supra) and after observing that facts before Hon'ble Bombay High Court were that in that case transaction itself was not doubted but in case of Mid-East Portfolio Management Ltd. (supra) genuineness of transaction itself was challenged by department. With all respect with observations of Special Bench in case of Mid-East Portfolio Management Ltd. (supra), we find that this is stand of department that transactions are not genuine but assessee is objecting from day one that all transactions were genuine as this is regular business of assessee for last so many years and department has itself accepted transaction as genuine in past and had allowed depreciation claimed by assessee. 32.9 Without bringing any material on record regarding specific item that transaction is not genuine, in our considered view formation of general opinion at end of Assessing Officer and again at end of ld. CIT(A) that transactions are not genuine either on facts of present case or in eyes of law, in our considered view that formation of general opinion eyes of law, in our considered view that formation of general opinion cannot be approved. 32.10 ld. counsel of assessee has invited our attention on some of clauses of agreements, which were similar to clause of agreement before Hon'ble Bombay High Court in case of Developmental Credit Bank Ltd. (supra). We have seen these clauses and found that these are similar clauses in case of Developmental Credit Bank Ltd. (supra). Therefore, we are of considered view that both lower authorities were not justified in rejecting these agreements and holding that there was colourable device to claim higher depreciation. 33. We have also taken into consideration various decisions of Tribunal i.e. in case of West Coast Paper Mill Ltd. v. Jt. CIT [IT Appeal No. 2154 (B) of 1999 (Mum.)], in case of Invest Well Publishers (P.) Ltd. (supra), and in case of Investment Trust of India Ltd. (supra) and found that ratio of these decisions are squarely applicable on present case. In these cases also depreciation on Sale of Lease Back (SLB) transaction were denied and after taking into consideration various cases including Special Bench in case of Mid-East Portfolio Management Ltd. (supra), various Benches of Tribunal has taken view that transactions were genuine and respective assessees were entitled for depreciation. 33.1 We have also seen Board Instruction No. 1978, dated 31-12-1999 issued by CBDT suggesting guidelines for investigation in case of finance lease agreement. These instructions issued by Board show that SLB transaction as such are not to be disapproved but are only to be regulated by assessing authority. We have also seen circular No. 2 of 2001 issued on 9-2- 2001 which states that accounting standards on lease issued by Institute of Chartered Accountants of India, which required lessee to capitalize assets in case of financial lease will have no implication on allowance of depreciation on assets. From instructions of Board and from Circular issued by Board, it is clear that nowhere it is suggested that lease back transactions are doubtful transactions or depreciation is not allowable, however, it has been suggested to departmental authority that they should be regulated. regulated word does not mean that assessee is not entitled for depreciation. 34. We have also taken into consideration decision in case of Dy. CIT v. Housing Development and Finance Corpn. Ltd. [2006] 98 ITD 319 (Mum.) on which reliance was placed by ld. DR. Tribunal has held that lease agreement between parties was financing arrangements, which has been given colour of lease transaction by adopting device. This decision of Tribunal has been considered in case of Invest Well Publishers Private Ltd. (supra) wherein, depreciation claimed by assessee was allowed on similar transactions. We further noted that in case of Housing Development & Finance Corpn. (supra) assessee was not in business of leasing whereas, present assessee carrying on business of leasing since 1983 and claim of assessee had been allowed up to assessment year 1992-93, therefore, with utmost respect, we are not inclined to follow decision in case of Housing Development & Finance Corporation (supra) but inclined to follow decision in case of Invest Well Publisher (P.) Ltd. (supra), whereby decision in case of H.D.F.C. (supra) has been considered. 35. In recent decision in case of Dy. CIT v. Global Tele System Ltd. [IT Appeal No. 1085 (Mum.) of 1998 vide order dated 30-11-2006] has allowed claim of assessee by dismissing appeal of Department. In that case also assessee claimed depreciation of Rs. 3.42 crores on Surface Banking Oven. These assets were sold by Tata Engineering and Locomotives Company to M/s. Classic Finance Services Enterprises for consideration of Rs. 3.42 crore. M/s. Classic Finance Services made full payment of Rs. 3.42 crores to M/s. Telco and sold same assets to M/s. Global Tele System under Hire & Purchase agreement dated 20-6-1993. M/s. Global Tele System gave assets on lease to Telco under agreement dated 27-9-1993. assessee claimed depreciation at rate of 100 per cent, however, Assessing Officer denied claim of depreciation by holding that all these transactions are colourable to reduce tax burden. CIT(A) allowed claim of assessee. On further appeal, Tribunal discussing issue at great length and after considering decision of Mid-East Portfolio Management Ltd.'s case (supra) and decision of Chennai Bench in Investment Trust of India Ltd.'s case (supra) whereby decision of Mid-East Portfolio Management Ltd.'s case (supra) whereby decision of Mid-East Portfolio Management Ltd.'s case (supra) was considered and distinguished, allowed claim of assessee. Other cases were also taken into consideration along with decision of Hon'ble Rajasthan High Court in case of Rajasthan Electricity Board (supra) and decision of Sharyans Resources Ltd. v. Jt. CIT [2002] 83 ITD 340 (Mum.) and in case of Dy. CIT v. Sony Capital Market Ltd. (sic) and also decision of Jodhpur Bench in case of Shree Rajasthan Syntex Ltd. v. Asstt. CIT [2005] 93 ITD 78 then allowed claim of assessee. 36. We have also taken into consideration decision of CIT(A) and found that ld. CIT(A) has gone on basis of general presumption that assets were leased out to bank just to secure amount given on loan otherwise there was no occasion to sale and lease back transaction with bank. CIT(A) has considered various aspects and confirmed findings of Assessing Officer that transactions were non-genuine as they were colourable just to reduce tax burden by claiming higher depreciation. CIT(A) has not taken into consideration aspect that assessee is in regular leasing business and about 7000 transactions had been entered into by assessee with various parties for sale and lease back. assessee who is banking corporation was maintaining all records in regard to each and every item, proper Profit & Loss A/c is maintained. All details were furnished and not single was detected by Assessing Officer that these are genuine or are only paper transactions. 36.1 lease rental is received regularly and has been shown in Profit & Loss A/c. other parties who are paying lease rentals to assessee have shown lease rental paid to assessee. department has not brought single case on record that parties who had paid lease rental has not shown/claimed deduction on account of lease rental but has claimed deduction of interest paid to assessee bank. In one case i.e. in case of R.S.E.B. (supra) lease rental paid was claimed as deduction. However, department treated this payment as interest on lease. Jaipur Bench of Tribunal allowed claim of RSEB. High Court has confirmed view of Tribunal in R.S.E.B.'s case (supra). Assets are shown in block of assets. Whenever these assets were taken back they were shown as taken back and whenever these assets were sold they were shown as sold. Insurance cover in respect of items involved in these transactions is in name of assessee. Any liability on account of insurance premium or on account of theft, damage etc. is on account of assessee. Therefore, merely on suspicion or conjectures, doubting that transactions are entered into for claiming higher depreciation, in our considered view were not justified either at end of Assessing Officer or at end of ld. CIT(A), who enhanced disallowance on entire transactions entered into in year under consideration. In view of above facts and circumstances, we set aside orders of authorities below and direct Assessing Officer to allow claim of depreciation on all items claimed by assessee. We order accordingly. 37. Now we will take up appeal of department in ITA No. 3535/Mum./99. 38. In ground No. 1, department is objecting in deleting addition of Rs. 1,47,165 made under section 6D relying on order for assessment years 1988-89 to 1990-91. 39. This ground was involved in appeal of assessee also. We have decided this issue against assessee while disposing appeal of assessee. Therefore, for reasons given in our order while deciding appeal of assessee, we reverse order of CIT(A) and restore order of Assessing Officer in this regard. We order accordingly. 40. Ground No. 2 relates to decision of addition of Rs. 3,84,985. 41. This issue was also involved in appeal of assessee and we have already disposed of this ground of appeal by which we have confirmed order of Assessing Officer. Accordingly, ground of department is also disposed of in favour of department and order of Assessing Officer is confirmed in this regard. 42. Ground No. 3 relates to deletion of addition of Rs. 12,000 being club expenses. 43. CIT(A) allowed ground by following order for assessment 43. CIT(A) allowed ground by following order for assessment year 1990-91. We do not see any infirmity in findings of CIT(A), who allowed claim of assessee following order of his predecessor. Therefore, this ground of department fails. 44. Ground No. 4 relates to deletion of addition of Rs. 2,51,109 made under section 37(4). 45. This issue has to be decided against assessee in view of decision in case of Britannia Industries Ltd. (supra). Therefore, we reverse order of CIT(A) and restore order of Assessing Officer in this regard. We order accordingly. 46. In result, appeals of assessee and department are allowed in part. *** ICICI LTD. v. JOINT COMMISSIONER OF INCOME TAX