9911796707
TMI Blog2024 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, illegal and unjust both is fact and law, hence liable to be quashed. 2. For that Pr. CIT(Central) erred in exercising jurisdiction u/s 263 of the IT Act by substituting his subjective opinion in place of the opinion formed by the assessing office. Since no jurisdiction u/s 263 can be exercised on change of opinion the present order is without jurisdiction, hence liable to be quashed and set aside. 3. For that Ld. Pr. CIT erred in passing order u/s. 263 of the IT act by going against the law settled by the jurisdiction High court and without making a minimal enquiry. Therefore the order passed u/s 263 of the IT Act is illegal and deserves to be quashed and set aside. 4. For that Ld. Pr. CIT erred in exercising jurisdiction u/s 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following reasons :- The assessee company has claimed depreciation of Rs. 2,68,25,107/- which includes depreciation on plant and machinery of Rs. 2,49,98,060/- as per IT Act 1961. On examination of records it is noticed that the assessee has claimed depreciation @30% on certain plant and machinery though the assessee is engaged in the business of construction. The assessee has shown hiring income of Rs. 22,44,997/- which constitutes 0.20% of total revenue from its business operation. However, the assessee has claimed depreciation @30% on plant and machinery where as its involvement in the business of relevant hiring busses and lorries was significantly low during the relevant period. Therefore, depreciation allowable on net assets is @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose for which assets are put to use and nor the dominant income, for which he relied upon on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Gupta Global Exim (P.) Ltd., passed in Civil Appeal No.3342 of 2008. He, therefore, submitted that the basic allegation of the ld. Pr.CIT for invoking the provisions of Section 263 of the Act is not correct and, prayed for quashing of the order passed u/s. 263 of the Act by the ld. Pr.CIT. 6. Per Contra, the ld. CIT-DR supported the order of the ld. Pr.CIT and submitted that the assessee has claimed depreciation @30% on the block of plant and machinery which includes machinery used for construction business also and it is not a case that the entire plant and machinery were gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction given by the ld. Pr.CIT, it is seen that the Pr.CIT has emphasized upon the dominant use of the assets to determine the character for claiming higher rate of depreciation. In this regard, in the case of Gupta Global Exim (P) Ltd. (supra), the Hon'ble Supreme Court has held that accrual of income as a determinative factor for coming to the conclusion that trucks were used in the business of running them on hire is not correct. Therefore, by respectfully following the judgment of the Hon'ble Supreme Court, we are of the view that the assessee is eligible for higher rate of depreciation on the assets which were used for business of hiring, no matter how much is the quantum of income from such hire business. Therefore, we direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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