9911796707
TMI Blog2023 (7) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year (A.Y) 2014- 15. 2. The brief facts of the case is that the assessee is a Partnership Firm engaged in the business of Earth Moving Equipments on hire basis and Mining Contractor, Cargo Handlers and Transporters. For the Assessment Year 2014-15, the assessee filed its original Return of Income on 30-09-2014 declaring total income of Rs. 15,20,73,460/-. The case was selected for scrutiny assessment and made disallowance of Rs. 10,00,000/- on various expenses claimed by the assessee and also disallowed higher rate of depreciation on Dumper, Tipper etc. @ 30% instead of 15% of depreciation. 3. Aggrieved against the same, the assessee filed an appeal before Commissioner of Income Tax (Appeals). The Ld. CIT(A) allowed the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable on record. The Ld. CIT(A) extracted the order of the ITAT in assessee's own case for Assessment Years 2011-12 to 2013-14 as follows: "....We have noticed that the tenders invited for hiring of equipments relate to the following kind of work I. 7 Excavation of over burden; II. Transportation of such excavated O.B./mineral; III. Excavation of mineral IV. Transportation of mineral from mines to pit head, stock piles of any other place. V. The transportation of over burden mineral and extracted minerals were done by running motor vehicles such as tippers, dumper etc. Further Circular no.652 of the Board makes it clear that motor/lorries must be hired to some other persons whether the use of the same in the assessee's bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee are distinguishable from the fact of the case of Gupta Global Exim P. Ltd. which pertained to the test of user when facts point out that the assets were used in assessee's own business, whereas in the case of the assessee the vehicles were given on hire in response to an open tender. We observe that the decision of the Hon'ble High Court of Andhra Pradesh High Court in case of CIT VS. Progressive Engg. Co that JCB, earth Moving machineries are though registered as Motor Lorries in Motor vehicles Act, same are not road transport vehicles is applicable to JCB only and cannot be stretched to its applicability to dumpers, tippers etc. motor vehicles. The referred case law is completely le in respect of fact, circumstances and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of these findings that the dumpers were held to be road transport vehicles in said decision and development rebate was denied. The judgment of the Supreme Court in CIT v. Gupta Global Exim (P.) Ltd. [2008] 171 Taxmann 474 pertain to the correct test which the authorities below had to apply pertain to whether the appellant was in the business of transportation and whether the vehicles were used in the said business. It may please be noted that as per circular no. 652, in order to derive the benefit of higher depreciation, motor lorries must be hired out to some other person and whether the use of the same in the assessee's business of transportation of goods on hire would suffice in this regard Board's Circular No. 609, dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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