TMI Blog2011 (8) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... MR.JUSTICE AKIL KURESHI , MS JUSTICE SONIA GOKANI JJ. Appearance : MRS MAUNA M BHATT for Appellant(s) : 1, SERVED BY AFFIX.(N) for Opponent(s) : 1, (Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue has challenged the judgment of the Tribunal dated 12.1.2007. Though two questions were proposed, only following question has been entertained by the Division Bench at the time of admission of appeal. [A] Whether the Appellate Tribunal was right in law and on facts in confirming the order passed by the CIT (A) allowing depreciation at the higher rate of 40% in respect of assets given on lease by the assessee? In view of the fact that the issue is covered by a Division Bench judgment of this Court, we do not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee was only in the business of trading in timber. We do not have the returns filed by the assessee before us. We do not have the constitution of the assessee-company before us. There is no evidence to indicate that the assessee was in the business of hiring out motor lorries for running them to earn business income. The entire inference is drawn by the Commissioner of Income-Tax (Appeals) only on the footing that the Assessing Officer had treated Rs. 12,59,639 as part of total business income which is not determinative of the above test, viz., whether the trucks were used in the transportation business as claimed by the assessee." 7. On the other hand, counsel for the respondent submitted that the Tribunal's order requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. Deputy Commissioner of Income-Tax reported in [2004] 265 ITR 114 and other decisions of other High Courts , held as under: "13. In the facts of the present case, as noticed hereinabove, all the authorities below have recorded that the assessee company is a leasing company which is engaged in leasing of plant and machinery, motor cars, etc. to its client. It is neither the case of the assessee nor is there anything on record to indicate that the assessee uses the vehicles in question in its business of transportation or that the assessee is engaged in the business of hire. In the circumstances, the basic requirement for being entitled to depreciation at the higher rate of 50 per cent under Entry No.III (2)(ii) of Appendix-I to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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