TMI Blog2011 (8) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... gone from the coffers of the company - Decided in favor of the assessee - 1244 of 2007 - - - Dated:- 3-8-2011 - AKIL KURESHI, SONIA GOKANI MS., JJ. JUDGMENT Akil Kureshi J.- 1. The Revenue has challenged the judgment of the Tribunal dated December 4, 2006, raising the following questions for our consideration : "A. Whether the Appellate Tribunal was right in law and on facts in confirming the order passed by the Commissioner of Income-tax (Appeals) allowing the claim of the assessee for depreciation at a higher rate of 40 per cent. when the assessee had given vehicles on lease ? B. Whether the Appellate Tribunal was right in law and on facts in confirming the order passed by the Commissioner of Income-tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendix I to the Income-tax Rules, 1962, is whether the asses- see was in the business of hiring out his trucks in addition to his busi- ness of trading in timber. The order of assessment clearly indicates that 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 determi- native of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring of the vehicle. The Bench, referring to the decision of the Karnataka High Court in the case of CIT v. BPL Sanyo Finance Private Ltd. reported in [2006] 287 ITR 69 (Karn) and the decision of the Bombay High Court in the case of Kotak Mahindra Finance Ltd. v. Deputy CIT reported in [2004] 265 ITR 114 (Bom) and other decisions of other High Courts, held as under (page 293 of 337 ITR) : 'In the facts of the present case, as noticed hereinabove, all the authorities below have recorded that the assessee-company is a leas- ing 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 vehi- cles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inabove would also apply in the case on hand. In the result, the question is answered in favour of the Revenue. The decision of the Tribunal of remanding the issue to the Assessing Officer for fresh consideration, in the light of the observations made in the order, is set aside. Resultantly, the Commissioner of Income- tax (Appeals) order with respect to this issue is also reversed. Tax appeal is allowed." 3. In the result, question A is answered in favour of the Revenue and against the assessee. 4. So far as question B is concerned, we may notice that the vehicle though registered in the name of the director was used for the purpose of business of the company, income derived is from leasing the vehicle was shown as income of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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