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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
1 ITA No .61/ CTK/2016 Asse ssment Year : 20 09- 201 0
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.61/CTK/2016 Assessment Year : 2009-2010
DCIT, Circle 1(1), Vs. M/s Ib Valley Transport, Sambalpur Lamtibahal, Brajarajnagar.
PAN/GIR No.AABFI 6752 Q (Appellant) .. ( Respondent)
Assessee by : Shri Mahendra Kumar Kedia, AR Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 02/11/ 2017 Date of Pronouncement : 07 /11/ 2017
O R D E R Per N.S.Saini, AM This is an appeal filed by the revenue against the order of the
CIT(A)-Cuttack, dated 30.11.2015 for the assessment year 2009-2010.
The sole issue involved in this appeal is that the CIT(A) erred in
deleting the disallowance of excess depreciation on Tippers of
Rs.43,74,093/-.
The brief facts of the case are that the assessee is engaged in the
business of transport. During the year under appeal, the assessee
claimed depreciation on Tippers of Rs.87,48,186/-. According to the
Assessing Officer, the assessee being in the business of transportation
was not entitled to claim depreciation at a higher rate of 30%. It was
2 ITA No .61/ CTK/2016 Asse ssment Year : 20 09- 201 0 allowable only in the business of letting vehicles on hire. In the case of
the assessee, who is doing transportation business, depreciation
allowable on Tippers is 15%. Therefore, he disallowed excess claim of
depreciation of Rs.43,74,093/- and added the same to the income of the
assessee.
Being aggrieved by this order of the Assessing Officer, the assessee
filed appeal before the CIT(A).
The assessee contended that it runs the business of running the
motor Tippers or motor lorries on hire in the name of M/s. Ib Valley
Transport for transporting the goods of M/s. MCL and others from one
destination to another destination on hire for which it received transport
charges. The assessee has engaged his own vehicles in the business of
giving the same on hire for goods transport only. He relied on the CBDT
circular No.653 dated 14.6.1993, where it was clarified that higher
depreciation will be admissible on motor lorries used in the assessee’s
busienss of transportation of goods on hire. It was submitted that similar
views have been taken by the Hon’ble Gawhati High Court in the case of
ABC India Ltd vs CIT, 226 ITR 914(Gau) and Hon’ble Kerala High Court in
the case of CIT vs. Balakrishna Transports, 233 ITR 133 (Ker).
The CIT(A) considering the submission of the assessee observed
that the assessee is engaged in the transport busienss and used its
vehicles and tippers in carrying the goods from one destination to another
destination and in lieu of the same received transportation charges. As
3 ITA No .61/ CTK/2016 Asse ssment Year : 20 09- 201 0 the assessee has used such vehicles only in the transportation business
for which it was hired by the principal, therefore, it was eligible to claim
depreciation at a higher rate of 30%. The claim of the assessee was also
corroborated by the judicial pronouncements because the business of the
assessee is transporting goods on hire only. Hence, the CIT(A) directed
the Assessing Officer to allow depreciation @ 30% claimed by the
assessee.
Being aggrieved by this order of the CIT(A), the revenue is in
appeal before us.
Ld Departmental Representative submitted that the higher rate of
depreciation at 30% claimed by the assessee on use of its tippers in the
business of transportation was disallowed by the Assessing Officer on the
ground that the assessee was not engaged in the business of letting the
vehicles on hire. According to the Assessing Officer, as per section 32 of
the Act, depreciation on motor vehicles used for own business is allowable
@ 15% depreciation. Therefore, the CIT(A) was not justified in deleting
the excess depreciation claimed by the assessee at Rs.43,74,093/-.
On the other hand, ld Authorised Representative of the assessee
supported the order of the CIT(A).
We have heard the rival submissions, perused the orders of lower
authorities and materials available on record. The undisputed facts of the
case are that during the year under consideration, the assessee was
4 ITA No .61/ CTK/2016 Asse ssment Year : 20 09- 201 0 engaged in the transport business and used its own tippers in the
business of transportation. The assessee claimed depreciation at a higher
rate of 30% on these tippers. The Assessing Officer disallowed the claim
of higher depreciation to the assessee on the ground that the assessee
has used tippers for its own business and has not let them out on hire.
On appeal, the CIT(A) allowed the claim of the assessee on the
ground that tippers were used in the business of transportation of the
assessee relying on the decision of Hon’ble Gawhati High Court in the
case of ABC India Ltd., (supra) and the decision of Hon’ble Kerala High
Court in the case of Balakrishna Transports (supra).
We find that the Hon’ble Gawhati High Court in the case of ABC
India Ltd. (supra) has held that the assessee was engaged in the business
of transport and carried on the business with the help of its own trucks as
well as hired trucks of other persons. The Assessing Officer disallowed
the claim for higher depreciation at 40% to the assessee which was
confirmed by the Tribunal. On further appeal, the Hon’ble Gawhati High
Court held that the assessee company used the motor vehicles and lorries
for running on hire, therefore, was entitled for higher rate of depreciation
at 40%.
Further, the Hon’ble Kerala High Court in the case of Balakrishna
Transport (supra) has held that the assessee was engaged in the business
of plying transport buses carrying passengers on different routes and
claimed depreciation on the buses at 40 per cent. The Assessing Officer
5 ITA No .61/ CTK/2016 Asse ssment Year : 20 09- 201 0 rejected the claim of higher depreciation @ 40% on the ground that buses
were not hired out but regular charges were recovered from passengers
from one point to another depending on the distance of travel. The
Tribunal allowed the claim. On further appeal to the Hon’ble High Court,
the Hon’ble High Court held that whether the payment was made by one
person or a group of persons or by individual passengers would be of total
irrelevance in the context. The real question was whether the assessee
engaged in the business of plying vehicles as an activity, used the
concerned vehicles for hire or not. The assessee firm was engaged in
transport activities. The transport activity was as regards plying of
transport buses carrying passengers on different routes determined by
the transport authorities. The passengers who travelled in such buses
travelled on hire and, therefore, the assessee was entitled to the higher
depreciation.
We find that no contrary decisions of Hon’ble Supreme Court of
Hon’ble High Courts were cited by ld Departmental Representative during
the course of hearing. Therefore, we do not find any good reason to
interfere with the order of the CIT(A), which is hereby confirmed and
grounds of appeal of the revenue are rejected.
In the result, appeal filed by the revenue is dismissed. Order pronounced on 07/11/2017. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER
6 ITA No .61/ CTK/2016 Asse ssment Year : 20 09- 201 0 Cuttack; Dated 7 /11/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : DCIT, Circle 1(1), Sambalpur 2. The Respondent. M/s Ib Valley Transport, Lamtibahal, Brajarajnagar 3. The CIT(A)- Cuttack 4. Pr.CIT- Sambalpur 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack