TMI Blog2012 (4) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. ORDER Ajay Kumar Mittal, J. This order shall dispose of Income Tax Appeal Nos. 209 and 210 of 2003 relating to the assessment years 1992-93 and 1993-94 respectively, as according to learned counsel for the parties, common questions of law and facts are involved therein. For brevity, the facts are being taken from ITA No.209 of 2003 relevant to the assessment year 1992-93. 2. The revenue has preferred this appeal under Section 260A of the Income Tax Act, 1961 (in short, "the Act") against the order dated 9.4.2003 passed by the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar (hereinafter referred to as "the Tribunal") in ITA No. 222 (ASR) 1999 for the assessment year 1992-93, claiming following substantial questions of law:- "( i ) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was justified in law in setting aside the order under section 154 of the Income Tax Act, 1961 passed by the AO and upheld by the CIT(A), wherein the mistake in the application of rate of depreciation on Trucks was rectified? ( ii ) Whether on the facts and in the circumstances of the case, the Hon'ble ITAT was justified in law in holding that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of this Act; ( b ) amend any intimation or deemed intimation under sub-section (1) of section 143." 6. In view of Full Bench judgment of this Court in CIT v. Smt. Aruna Luthra, [2001] 252 ITR 76/118 Taxman 932 it was submitted that the Assessing Officer was within his jurisdiction to rectify the order as the assessee had claimed 40% depreciation on the trucks which were being used by it as private carrier. According to him, under Sub-Item (1) of Item III of Appendix I to the Rules, the assessee was entitled to 25% rate of depreciation on trucks which were being used for its own business of transportation of goods. However, 40% was admissible in those cases where the trucks had been used for public carrier transport. Reliance was placed on the decisions of the Karnataka High Court in Veeneer Mills v. CIT [1993] 201 ITR 764 and Rajasthan High Court in CIT v. Sardar Stones [1995] 215 ITR 350 in support of his submissions. 7. Controverting the aforesaid submissions, learned counsel for the assessee submitted that the assessment was framed under Section 143(3) of the Act and recourse to rectification under Section 154 of the Act was in the nature of revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to the relevant entries in Appendix I of the Rules. Sub Item 1 of Item III of Appendix I provides for depreciation on machinery and plant whereas Sub Item 2(ii) of Item III of Appendix I deals with higher rate of depreciation on motor buses, motor lorries and motor taxis used in a business of running them on hire. They read thus :- Appendix I "III. Machinery and Plant Dep. allowance As % age of WDV (1) Machinery and Plant other than those covered by Sub item (1A) (2) and (3) below. 25% (1A) Motor Cars, other than those used in a business of running them on hire, acquired or put to use on or after the Ist day of April 1990. 20% (2)( i ) ** ** ** ( ii ) Motor buses, motor lorries and Motor taxis used in a business of running them on hire." 40% 10. A plain reading of the aforesaid clearly shows that wherever motor buses, motor lorries and motor taxis are used for public carrier, rate of depreciation admissible is 40%. However, in the case of private carrier, the same is restricted to 25%. 11. In order to apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Public Carriers Trucks are to pay the token tax and goods tax, whereas the private trucks are to pay more token tax. The private trucks do not pay tax because they are not permitted to load the goods from the outside on hire basis. The Public Carrier Trucks pay much more insurance premium than the private carrier trucks. Public Carrier Trucks operate in far away places, cover more distances, and are prone to more risks. It is clear from the above facts that if our public trucks carry goods of our assessee firm they save much more hire charges and result in increased income of the assessee firm which is in the interest of revenue and therefore public carriers owned by the assessee are entitled to claim the depreciation at the rate of 40% which is prescribed in the Income Tax Act and Rules. Therefore, the claim of depreciation at the rate of 40% by the assessee firm is genuine." The claim of the assessee firm has been considered in the light of the above said submissions. The cost of transportation of the materials like crasher, bajri and other goods from the market to the site of the assessee's business is double if these materials are brought in trucks taken from the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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