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TMI Blog2011 (6) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Commissioner of Income-tax (Appeals) on December 10, 2010 for the assessment year 2007-08. The issues involved in the appeals filed by the Department and the memo of cross-objections filed by the assessee are common. We therefore, find it convenient to dispose of the present bunch of the matters by a consolidated order. I. T. A. No. 150/Chandi/2011 : Assessment year 2006-07 : Department's appeal : The Department has taken the following grounds of appeal : "(1) On the facts and in the circumstances of the case, the learned Commissioner of Income-tax (Appeals)-II, Ludhiana, has erred in allowing of depreciation on tippers, vibrators, vibrator soil compactor 40 per cent instead of 15 per cent allowed by the Assessing Officer and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before the learned Commissioner of Income-tax (Appeals) upon which the learned Commissioner of Income-tax (Appeals) directed the Assessing Officer to allow depreciation at the rate of 40 per cent on tippers, vibrator, vibrator soil compactor as against 15 per cent allowed by the Assessing Officer with the following observations: "(5) I have gone through the facts of the case as well as written submissions made by the learned authorised representative. The issue to be decided in this case is the allowability of depreciation as regards commercial vehicles which are treated as plant and machinery by the Assessing Officer. The argument of the authorised representative are on the basis of the functional tests and the view taken by the respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer was justified in restricting the rate of depreciation to 15 per cent as against 40 per cent claimed by the assessee. It was further submitted that the learned Commissioner of Income-tax (Appeals) was not justified in further holding that the assessee was eligible to get additional depreciation. 6. In reply, learned counsel for the assessee supported the order passed by the learned Commissioner of Income-tax (Appeals). He submitted that the business of the assessee was ultimately taken over by a company, namely, M/s. S. C. Jain Construction Co. P. Ltd. and that the Department has allowed depreciation at the rate of 40 per cent on tippers, vibrator and vibrator soil compactor while passing the assessment order in the case of S.C. Jain C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion at the rate of 40 per cent on commercial vehicles. The word "commercial vehicles" includes within its ambit all vehicles which fall in the category of commercial vehicles. The learned Commissioner of Income-tax (Appeals) has given detailed justification for treating the tipper, vibrator and vibrator soil compactor as commercial vehicles. We are in agreement with his reasoning and decision in the matter. Similar view has been taken by other Benches of this Tribunal and also by the High Courts to which reference has already been made by learned counsel for the assessee. In this view of the matter, we hold that the learned Commissioner of Income-tax (Appeals) has rightly directed the Assessing Officer to allow depreciation at 40 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation without appreciating the provisions of section 32(1)(iia)." 14. We have heard both parties. The issue raised in ground No. 1 is identical to Ground No. 1 taken by the Department in the assessment year 2006-07. Following our order disposing of the Department's appeal for the assessment year 2007-08, we confirm the order of the learned Commissioner of Income-tax (Appeals) to the extent that the assessee is entitled to claim depreciation at 40 per cent on tipper, vibrator and vibrator soil compactor. We however vacate his direction that the assessee is eligible for additional depreciation on the aforesaid items, for the reasons given earlier in this order. Ground No. 1 is partly allowed. 15. Ground No. 2 taken by the Department r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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