2011 (8) TMI 865

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....s right in law and on facts in confirming the order passed by the CIT (A) allowing depreciation at the higher rate of 40% in respect of assets given on lease by the assessee?"   In view of the fact that the issue is covered by a Division Bench judgment of this Court, we do not think it necessary to discuss the facts and submissions of both sides at length. Suffice it to note that under similar circumstances, a Division Bench of this court in Tax Appeal No.100 of 2000 decided on 1.4.2011, held that higher rate of depreciation was not available to the assessee and the vehicles would be eligible only for normal rate of depreciation. This view was followed in a subsequent judgment dated 6.7.2011 in Tax Appeal No.311 of 2001 in which fol....

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....fficer had treated Rs. 12,59,639 as part of total business income which is not determinative of the above test, viz., whether the trucks were used in the transportation business as claimed by the assessee."   7. On the other hand, counsel for the respondent submitted that the Tribunal's order requires no interference. Cogent reasons have been given for the conclusions. Tax Appeal may be dismissed.   8. Before adverting to the rival submissions, for ready reference, we reproduce relevant entries for depreciation as under:-   Block of assets   Depreciation allowance as percentage of written down value   III. Machinery and Plant   (2)(ii) Motor buses, motor lorries and motor taxis used in a bu....

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.... nor is there anything on record to indicate that the assessee uses the vehicles in question in its business of transportation or that the assessee is engaged in the business of hire. In the circumstances, the basic requirement for being entitled to depreciation at the higher rate of 50 per cent under Entry No.III (2)(ii) of Appendix-I to the Rules is not satisfied by the appellant. In other words, appellant does not pass the test for the applicability of Entry No. III(2)(ii) of Appendix-I appended to the Rules, viz., the user of the vehicles in the business of the assessee of transportation or the business of hire. The Tribunal was, therefore, justified in holding that the appellant is entitled to depreciation at the rate of 33.33 per cent....