2008 (5) TMI 7

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....ia. During the previous year relevant to the Assessment Year 1998-99, the respondent-assessee had purchased trailers and loaders and put them to use on hire. The Assessment Officer (AO) took the view that the assessee was, during the relevant assessment year, in the business of timber trading and it is only occasionally that the trucks owned by the assessee were given out on hire to outside parties and, therefore, the assessee was not in the business of running the trucks on hire and, therefore, the assessee was not entitled to claim higher rate of depreciation at 40%. This finding of the AO was reversed by CIT(A) vide order dated 29^th October, 2004. It was held by CIT(A) that transportation income of Rs.12,50,639/- by was of running th....

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....anes-Aeroengines             (ii) Motor buses, motor lorries and motor taxis used in a business of running them on             hire."                                  40 Under sub-item 2(ii) of  Item III, higher rate of depreciation is admissible on motor trucks used in a business of running them on hire. Therefore, the user of the same in the business of the assessee of transportation is the test. In the present case, none of the Authorities bel....

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....before us. We do not have the constitution of the assessee Company before us. There is no evidence to indicate that the assessee was in the business of hiring out motor lorries for running them to earn business income. The entire inference is drawn by CIT(A) only on the footing that the AO 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. For the aforestated reasons, we set aside the impugned judgment of the High Court and we remit the matter to Commissioner of Income   Tax   (Appeals) for de novo examination of the case in accordance with law. Needless to....