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TMI Blog2019 (7) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... her than using the motor vehicles for the purpose of its own business and therefore, erred in deleting the addition due to excess depreciation claimed to the tune of Rs. 1,65,24,247/-". 3. The assessee in the present case is a Company, which is engaged in the business of providing logistics solution. The return of income for the year under consideration was filed by it on 29.09.2011 declaring total income of Rs. 32,61,685/- in the assessment originally completed under section 143(3) vide an order dated 25.03.2014, the total income of the assessee was determined by the Assessing Officer at Rs. 81,64,872/-. The said assessment was subsequently set aside by the ld. CIT vide an order dated 26.03.2015 passed under section 263 of the Act by treating the same as erroneous and prejudicial to the interest of the Revenue on the ground that the claim of the assessee for depreciation at a higher rate on motor lorries/trucks was allowed by the Assessing Officer without examining as to whether the said lorries were used by the assessee for running the same on hire. The ld. CIT accordingly directed the Assessing Officer to make the assessment afresh after examining the claim of the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortation or providing logistic solutions. The A.O. has only vaguely mentioned that the appellant was not using vehicles in business of running them on hire. A look at the rate table in appendix-I clearly prescribes higher rates for vehicles used in the business of running them on hire. A lower rate of 15% is made applicable only in business other than such business of running on hire. In view of the appellant's claim before the CIT u/s.263 and before the A.O. in the consequential assessment and the submissions before me, I am of the view that the appellant is in the business of running vehicles on hire. The vehicles are not being used for business other than business of running them on hire. The appellant has relied on the 5 decisions as listed in the CIT's order u/s.263. The said decisions are as under: i) ABC India Ltd. (226 ITR 914) Gauhati ii} BPL Sanyo Finance (287 ITR 69) Karnataka iii] Balakrishna Transports (233 ITR 133) Kerala iv) Gupta Global Exim (305 ITR 132) SC (v) Sardar Stones (215 ITR 350) Rajasthan 2.2. I have gone through the above judicial decisions. These decisions are applicable in the case of the appellant entitling it to higher rate of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the ratio of the judicial pronouncements cited on behalf of the assessee before the ld. CIT(Appeals) is squarely applicable in the facts of the assessee's case and the ld. CIT(Appeals), therefore, was fully justified in relying on the same while giving relief to the assessee on this issue. 7. We have considered the rival submissions and also perused the relevant material available on record. It is observed that the claim of the assessee for higher depreciation on motor lorries/trucks was disallowed by the Assessing Officer after having recorded a finding that the same were used by the assessee-company for its own business of providing logistic solutions and not in the business of running them on hire. As rightly contended by the ld. D.R., the claim of the assessee for higher depreciation thus was disallowed by the Assessing Officer after recording a specific adverse finding and the ld. CIT(Appeals) was not correct in observing that no such adverse finding was recorded by the Assessing Officer in the assessment order and that the disallowance was made on the basis of vague reasons. We also find merit in the contention of the ld. D.R. that the case laws cited on behalf of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on hire. It was held that what was relevant for allowance of higher depreciation was whether the assessee was in the business of hiring out its trucks in addition to its business of trading in timber and since none of the authorities below had examined the matter by applying this test, the matter was remanded by the Hon'ble Supreme Court for fresh consideration. In the case of CIT -vs.- S.K. Mylsamy Gounder (139 taxman 408), similar issue had come up for consideration before the Hon'ble Madras High Court and after having found that it was not clear as to whether the assessee had put any material before the assessing authorities or further authorities to show that he had earned certain income by hiring the vehicles, the matter was remanded by the Hon'ble Madras High Court for considering the claim for higher depreciation after making an enquiry as to whether the assessee had actually earned any income by hiring lorries. 9. In the present case, it appears that neither the Assessing Officer nor the ld. CIT(Appeals) to have examined as to whether the assessee was in the business of hiring out its motor lorries/trucks in addition to its business of providing logistic solutions and whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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