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TAXAP/1894/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1894 of
2009
=========================================================
COMMISSIONER
OF INCOME TAX-I - Appellant(s)
Versus
R
R CONSTRUCTION - Opponent(s)
=========================================================
Appearance :
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 19/04/2011
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The revenue is
in appeal against the judgment of the Tribunal dated 6.3.2009 raising
the following substantial question of law for our consideration:-
“Whether
the Appellate Tribunal is right in law and on facts in confirming the
order passed by CIT(A) in deleting the disallowance of depreciation
made by the Assessing Officer?”
2. The issue
arises with respect to rate of depreciation that the assessee could
claim on dumpers. The case of the assessee was that he is in the
business of running them on hire and that therefore, he is entitled
to higher depreciation at the rate of 40% as compared to the
depreciation at the rate of 25% that the revenue was inclined to
grant. Issue was carried in appeal. CIT (Appeals) as well as the
Tribunal both held in favour of the assessee and concluded that he
was in the business of running such dumpers on hire.
3. The issue
regarding higher rate of depreciation for dumpers given on hire is no
longer res-integra and is concluded by decision of this Court in 165
ITR 160. However, counsel for the revenue submitted that the question
arising in the present appeal pertains to the nature of the
assessee’s activities.
4. We have
perused the orders on record, in particular CIT (Appeals) ruled in
favour of the assessee on this particular issue of fact making the
following observations :-
“6.6 The
Assessing Officer thought provided with further clarificatory
evidences when remand report was called for, regarding the
transportation of material/rocks through hire, yet has observed that
assessee is engaged in the business of earthwork and using dumpers on
his very own contracts. The evidences regarding hiring of
transportation and transportation receipts were furnished by the
assessee. The Assessing Officer was forwarded these details and to
give his report on the evidences produces is incorrect.
6.7 It can be
seen from the evidences that the assessee no doubt owned the vehicles
for own contracts, yet there are also separate hiring contracts for
which detailed accounts of receipts and used of dumpers along with
RTO registration were submitted to cross verify the hire income.
Further, the registration nos. were called for the dumpers. There was
also tally of these registration no. with the transactions of hiring.
Therefore, the interference of Assessing Officer that the vehicles
are not used for business of hiring of transportations devoid of any
substances and merits. The facts of transportation hire is now not in
doubt and conclusively proved with evidences placed on record. The
facts of giving the dumpers on hire for transportation activity
cannot be ignored, even where the assessee used dumpers in his
contracts also. Therefore, the assessee’s case is to be considered
for higher rate of depreciation because of the evidences of business
of transportation of earth and rocks on hire.”
5. This view was
confirmed by the Tribunal in the impugned judgment.
6. We find that
the CIT (Appeals) as well as the Tribunal both concurrently on facts
found that the assessee was in the business of running the dumpers on
hire. Therefore, both the authorities have given cogent reasons. We
find that the issue is based on facts correctly appreciated by the
authorities below. No question of law arises. The Tax Appeal is,
therefore, dismissed.
[Akil
Kureshi, J.]
[Ms.
Sonia Gokani, J.]
mrp
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