2018 (5) TMI 1172

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....COMMON ORDER (PER : HONOURABLE Mr. JUSTICE AKIL KURESHI) All these appeals arise out of common background, though involving different assesses. We may record facts from Tax Appeal No. 414 of 2018, which is treated as a lead matter. This appeal is filed by the Revenue challenging the judgment of the Income Tax Appellate Tribunal dated 29th August 2017, raising following questions for our consideration : [A] "Whether on the facts and in circumstance of the case of the Appellate Tribunal is right in law in defining the nature of business of the assessee as transporter and in confirming the findings of the CIT [A] that the assessee is entitled to higher rate of depreciation @ 30% on dumpers as against depreciation @ 15% allowed by the A.....

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....opinion, the assessee was not in the business of running motor lorries on hire. Therefore, the assessee carried the matter in appeal. Before the CIT [A], assessee pointed out that the assessee was granted contract for providing equipments and manpower for mining and transportation of mined material. The assessee relied on the tender notices and the tender terms which inter alia provided that the tender was for hiring of such machinery for all kinds of strata excavation and transportation. On the basis of such tender terms, the assessee argued that the mines or cargo do not belong to the assessee. The assessee has been awarded contract for providing equipments on hire with manpower to execute the work of excavation, loading and removal of ....

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....iation in respect of buildings, machinery, plant or furniture, being tangible assets as well as certain intangible assets owned wholly or partly by the assessee and used for the purpose of the business or profession, at the prescribed rates. New Appendix I, which is applicable for AY 2006-2007 and onwards, in Part-A contends specific rate of depreciation for "tangible assets". Capital-III thereof pertains to "machinery and plant ". Under sub-item [2] of Item [3] (iii), the rate of depreciation on "motor buses, motor lorries and motor taxis used in the business of running them on hire" is prescribed @ 30%. It is in this context, we have to test the correctness of the view taken by CIT [A] and the Tribunal. Revenue's main contention appears t....