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TMI Blog2013 (7) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... stacker" which falls under the head "motor lorries as envisaged in Entry III E (1A) of Part I of Appendix-I". For this, the assessee has raised following ground No. 2 : "2. That on the facts and on the circumstances of the case the Commissioner of Income-tax (Appeals) had grossly erred in not holding/appreciating the fact that 'reach stacker' which is a sophisticated mobile crane used by the appellant for the purpose of its business of cargo lifting, handling and moving, on hire, and registered as a heavy motor vehicle, clearly falls within the scope and ambit of the expression 'motor lorries' as envisaged in Entry III E (1A) of Part I of Appendix I and thus is entitled to depreciation of 40 per cent. instead of 25 per cent. as allowed by the Assessing Officer. Such action of the Commissioner of Income-tax (Appeals) in upholding/confirming the Assessing Officer's action in restricting the depreciation to 25 per cent. only, instead of 40 per cent. as claimed by the appellant, is bad in law, illegal and ab-initio void and is subjected to be cancelled/ quashed/set aside." 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one place to another within port or dock area. Even in the brochure for this machine submitted by the learned authorised representative it is mentioned as follows : 'Reach stacker - Loaded container handler' Further, in this brochure itself it is mentioned that the speed of this machine cannot be more than 25 kmph. These things clearly show that this 'reach stacker' is basically a mobile crane which is used for handling loaded containers in 'cargo handling facilities' and is not a vehicle for carrying goods from one place to another as is done by motor lorries. The transport department has itself said that it was a non-transport vehicle. Hence this 'reach stocker' cannot be equated with a 'motor lorry' as provided in the depreciation chart. As regards the case of Gujco Carriers [2002] 256 ITR 50 (Guj) relied on by the learned authorised representative I feel that from the con tents of the decision it appears that in that case the vehicle under consideration was a transport vehicle (registered as a heavy motor vehicle) on which a crane had been mounted. Since such vehicle had been registered as a transport vehicle honourable court may have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's paper book at page 48. The description of vehicle is as under :- "1(one) no. reach stacker (container handler) model RSL-45, capacity 4ST, 4 high in 1st row, 2ST, 4 high in 2nd row and 12T, 3 high in 3rd row, complete in all respects machine srl. No. 34052" 5. Learned counsel for the assessee has also drawn our attention to the certificate of CRL dock permit, wherein this vehicle was taken on hire to prove that the assessee is giving this vehicle on hire basis. The relevant document is enclosed at the assessee's paper book page 51. Learned counsel for the assessee also drew our attention to the definition of heavy goods vehicle as per section 2 of the Motor Vehicle Act, 1988, which is as under : "(16) 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms ;" 6. Even unladen weight mentioned in the certificate of registration in this vehicle 45,000 kgs. Learned counsel for the assessee also drew our attention to the observations made in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs v. CIT [2002] 256 ITR 50 (Guj), wherein it is held as under (page 59) : "14. Thus, a mobile crane mounted on a truck constitutes a single unit known as a 'truck crane' which is adapted for use upon roads for special services. The truck on which the crane is mounted is constructed and adapted specially to carry the crane. 14.1 'Goods carriage' as defined in section 2(14) of the Motor Vehicles Act, 1988, means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. This definition is not confined only to carriage of freight which is narrower than the expression 'carriage of goods'. In the instant case, the truck is adapted for use solely for carriage of the crane mounted on it. The mounted crane is attached to the truck which carries it. The test of carrying goods such as potatoes and tomatoes that require loading and unloading in the context of carriage of freight when transported, as w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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