COMMISSIONER OF INCOME TAX JAIPUR Vs. SULTAN AKHTAR

JUDGEMENT

(1.) THE Income Tax Appellate Tribunal, Jaipur Bench, Jaipur, has referred the following question of law for the opinion of this Court: - "whether; on the facts and in the circumstances of the case the Tribunal was justified in holding that the assessee is entitled to depreciation at the higher rate of 40% and not 30% on the trucks and dumpers used by the assessee for its business?"

(2.) THE assessee M/s. Sultan Akhtar of Ramganjmandi was engaged in the business of mining. THE assessee was using dumpers for excavating the mines and using the trucks for carrying the stones from the mines to their godowns or to the sales depot. For the assessment year 1981-82, the assessee claimed depreciation on the dumpers and the trucks @ 40%, which was allowed by the Income Tax Officer, while completing the assessment, under Section 143 (1) of the Income Tax Act, but later-on, it was noticed by the Income Tax Officer that the depreciation has wrongly been allowed to the assessee @ 40% and he, therefore, issued a notice to the assessee under Section 143 (2) of the Income Tax Act and revised the assessment order and allowed the depreciation on the dumpers and the trucks @ 30% only. Dissatisfied with the order passed by the Income Tax Officer, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), who, by his order dated September 5, 1985 dismissed the appeal so far as allowing the depreciation @ 30%, but partly allowed the appeal on other grounds, i. e. , on the ground that the dumpers used by the assessee are mining machinery and should have been allowed depreciation at the rate applicable to the mining machinery. Aggrieved with the order passed by the Commissioner of Income Tax (Appeals), directing the Income Tax Officer to treat the dumpers as mining machinery and to allow depreciation on this ground, the Revenue filed an appeal before the Income Tax Appellate Tribunal, Jaipur Bench, Jaipur. THE Tribunal, treating the dumpers as the trucks allowed the depreciation @ 40%, both for trucks and dumpers. Dissatisfied with the order passed by the Tribunal, the Revenue moved an application under Section 256 (1) of the Income Tax Act before the Income Tax Appellate Tribunal requesting the Tribunal to refer the question of law mentioned in the application for the opinion of the High Court, which, according to the Revenue arises out of the order passed by the Tribunal, and the Tribunal by its order dated June 16, 1987, referred the question of law, mentioned in para No. 1 above for the opinion of this Court.

(3.) THE same question came-up for consideration before us in D. B. Income Tax Reference Case Mo. 77/1985 (THE Commissioner of Income Tax, Jaipur vs. Manjeet Stone Company, Kota), which we have decided today, wherein, while answering the question in favour of the Revenue, we have held that as the truck has been used by the assessee in its business, therefore, the case of the assesses is covered by Entry No. Hi (ii) D (9) and not by Entry No. III (ii)E (1-A) of Part I of Appendix-1, appended to the Income Tax Rules, 1962, and as such, the assessee is entitled for depreciation @ 30% and not @ 40%.