GAJINDER SINGH S Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is an application under Section 256(2) of the Income-tax Act, 1961, with a prayer to call for a statement of the case on some questions of law which arise out of the order dated October 27, 1997, of the Income-tax Appellate Tribunal, Guwahati Bench, Guwahati, in I. T. A. No. 227 (Gauhati) of 1990.

(2.) THE facts briefly are that for the assessment year 1987-88, the petitioner filed his return and was assessed to tax by an assessment order. In course of the said assessment, the petitioner claimed a depreciation at the rate of 40 per cent. on the trucks owned by him. THE petitioner's case was that since the trucks had been used by the petitioner in transportation business, he was entitled to 40 per cent. depreciation on the trucks as per the circular of the Central Board of Direct Taxes as well as the Income-tax Rules. But the said case of the petitioner was turned down by the Assessing Officer in the assessment order and instead, depreciation at 30 per cent. was allowed on the trucks of the petitioner. Against the said assessment order, the petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), Gauhati, who, in his order dated January 10, 1990, allowed 40 per cent. depreciation. Against the said order of the Commissioner of Income-tax (Appeals) Gauhati, the Department preferred an appeal numbered as I. T. A. No. 227 (Gauhati) of 1990, before the Income-tax Appellate Tribunal, Gauhati Bench, Guwahati. By an order dated September 15, 1993, the said Appellate Tribunal allowed the appeal of the Department holding, inter alia, that the circular of the Central Board of Direct Taxes on which reliance was placed by the asses-see was of no help in view of the fact that the assessee could not establish that the trucks were hired out to other parties or they were used in his business of transportation of goods on hire. Aggrieved, the petitioner filed an application under Section 256(1) of the Income-tax Act, 1961, before the Income-tax Appellate Tribunal/Gauhati Bench, Guwahati, numbered as R. A. 60 (Gauhati) of 1993 with a prayer to refer the following two questions of law which arose out of the said appellate order of the Tribunal :

(3.) WE have perused the order dated January 10, 1990, of the Commissioner of Income-tax (Appeals), Gauhati, a copy of which has been annexed to this petition as annexure-III. In the last paragraph of the said order of the Commissioner of Income-tax (Appeals), Guwahati, it appears that the Commissioner has taken into consideration the fact that the petitioner had earned a sum of Rs. 35,33,591 from the Army, for running of trucks on hire and a sum of Rs. 4,72,860 from other private parties out of the said business as has been reflected in the profit and loss account of the petitioner, and other facts that has been stated in the said paragraph and has held that the petitioner was using the trucks in a business of running them on hire and, therefore, depreciation at the rate of 40 per cent. was to be allowed. In view of the said findings as recorded by the Commissioner of Income-tax (Appeals) in his order dated January 10, 1990, which was the subject-matter of appeal before the Income-tax Appellate Tribunal, Gauhati Bench, Guwahati, in I. T. A. No. 227 (Gauhati) 1990, we are of the opinion that the rejection of the prayer of the petitioner for reference of the aforesaid two questions was not justified and that this is a fit case in which this court should call for a statement of the case from the said Tribunal on the aforesaid two questions of law.