TMI Blog2020 (2) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... in the business of hiring of motor vehicles simplicitor, she will not be entitled to the claim of higher rate of depreciation of 30%. In this case, the assessee is engaged in contract business and is not in the business of letting vehicles on hire simplicitor. Hence the assessee is not entitled to the claim of higher rate of depreciation. - Decided against assessee. - ITA Nos. 750 to 752/Coch/2019 - - - Dated:- 28-2-2020 - Shri George George K., JM For the Assessee : Shri Sandeep Gopalakrishnan, Adv. For the Revenue : Shri Mritunjaya Sharma, Sr. DR. ORDER Per GEORGE GEORGE K., JM These appeals at the instance of the assessee are directed against three orders of the CIT(A), Trivandrum, all dated 10/10/2019. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers passed by the Assessing Officer for the assessment years 2008-09 to 2010-11 in restricting the claim of depreciation, the assessee preferred the appeals before the first appellate authority. During the course of appellate proceedings, copy of the contract note entered between the assessee and IOCL and BPCL was submitted by the assessee. The Ld. AR has also filed a brief written submission. 4.1 The CIT(A) after examining the contract note entered by the assessee with IOCL and BPCL concluded that it is not a case of hiring of motor vehicles simplicitor but a bundled contract for transportation of cylinders. It was further noticed by the CIT(A) that the assessee was not paid for idle time of the motor vehicles kept at the service of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provider provides transport of goods and also issues consignment note - As no consignment note was issued and ONGC was consignor as well as consignee . The facts of the same ore similar to the present case and clearly shows that the Assessee is engaged in the business of 'charter hire business' or 'supply of tangible goods'. 2. In the following decision, GLOBAL VECTRA HELICORP LTD. Versus COMMISSIONER OF S.T., MUMBAI-II 2016 (42) S.T.R. 118 [Tri. - Mumbai), the Hon'ble Customs Excise and Service Tax Appellate Tribunal, West Zonal bench, Mumbai held in the issue of ONGC hiring helicopter at its disposal to ferry persons and cargo for their offshore operations where the Flight crew and maintenance crew with f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with trained pilot and necessary engineering crew for its operation, during period May, 2008 to May, 2010 and charging consideration on the basis of per hour for total time consumed during flight, Such services rightly classifiable as Supply of Tangible Goods service and not as Transportation of Passenger by Air service since effective control and possession of aircraft remained with Hospitality Industry, the service provider. The same further elucidates the Assessee's claim that the Service being provided is Supply of Tangible Goods in lieu of letting out to hire and not Transportation Service, 5. In PETRONET LNG LTD. Versus COMMISSIONER OF SERVICE TAX, NEW DELHI 2016 (46) S.T.R. 513 (Tri. - Del.) the Hon'ble CESTAT, PRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zj) of Finance Act, 1994. 6. Without prejudice to the above grounds, the doctrine of essence may be looked upon wherein the actual facts of the matter may be considered irrespective of the facts represented on paper. A similar stand has been taken by the honourable High Court of Kerala in Commissioner of Income Tax, Cochin v. FED Bank Financial Services ltd. 2010 KHC 456 wherein the honourable court has held that, In our view, higher rate of depreciation is provided only in respect of items of machinery, plant etc. which really deteriorates very fast on account of extensive use. A vehicle on hire is extensive/y used and so much so, it's value erodes faster than a vehicle privately owned and used by somebody. Keeping this in mind, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee being engaged in the business of contract. The contract entered between the assessee and the oil companies is not a case of hiring motor vehicles simplicitor and deduction has been made by the Oil companies u/s. 194C of the I.T. Act. The judgment of the Hon ble Uttarakhand High Court in the case of Indian Oil Corporation Ltd. (supra) is applicable to the facts of the instant case. The Hon ble Uttarakhand High Court, while dealing with issue of tax deduction at source on transportation contract, which is identical to the fact of this case, held that it is a case of contract business liable for deduction of tax at source u/s. 194C of the I.T. Act and not u/s. 194I of the I.T. Act. The relevant portion of the judgment of the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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