TMI Blog2003 (6) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... court was delivered by A. R. DAVE J. - At the instance of the Revenue, the following question of law has been referred to this court for its opinion by the Income-tax Appellate Tribunal, Ahmedabad Bench "B", under the provisions of section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") : "Whether, in law and on facts, the assessee is entitled to depreciation at the rate of 30 per cent. on two items, namely, (1) hot mixing plant, and (2) paver finishing machine used by the assessee in its activity of road building ?" We have heard senior standing counsel, Shri M. R. Bhatt, for the applicant-Revenue. Nobody has appeared for the respondent-assessee, though the respondent-assessee has been duly served with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the conclusion that the machines referred to hereinabove were "earthmoving machinery employed in heavy construction works such as dams, tunnels, canals, etc." and, therefore, the assessee was entitled to depreciation at 30 per cent. on the said machinery. In the aforesaid circumstances, this court has to decide the question referred to hereinabove and to opine whether the assessee was entitled to depreciation at 30 per cent. or 15 per cent. Learned counsel, Shri M. R. Bhatt, has submitted that the Tribunal was in error while considering and following its order passed in Hindustan Construction Co. [1989] 30 ITO 171 (Ahm). He has drawn our attention to the said order and also to a circular, which has been referred to in para. 13 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), dated 17th June, 1985, schemes of broad banding were announced in respect of 14 industries which also included earth moving machinery industry. The earth moving machinery industry was divided into following two subcategories: (a) Earth moving machinery including bull dozers, dumpers, scrappers, loaders, shovels and drag lines, (b) Road rollers and vibratory compactors. 2. On further consideration of the matter, it has now been decided to categorise the earth moving machinery industry in the following manner: (a) Earth moving machinery including bull dozers, dumpers, scrappers, loaders, shovels, vibratory compactors and drag lines (excluding walking drag lines), (b) Walking drag lines, (c) Road rollers, hot-mix plants and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Though concrete is often used for the purpose of construction of road, the concrete mixing machine is never used :or the purpose of moving earth from one place to another and, therefore, in our opinion, "hot mixing plant" can never be considered an "earth moving machinery employed in heavy construction works, such as, dams, tunnels, canals, etc." So far as "paver finishing machine" is concerned, the said machine is used for the purpose of giving adequate pressure on the surface of the road to be constructed, so that the road can withstand the pressure of vehicular traffic. Looking to the said fact, it cannot be said that "paver finishing machine" is an earth moving machinery. We, therefore, come to a conclusion that paver finishing mach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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