1998 (8) TMI 58

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....is filed by the Revenue under section 256(2) of the Income-tax Act, 1961, seeking reference of the following questions, viz. "1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal has erred in allowing higher rate of depreciation on tippers ignoring the fact that the same are not included in the items of machinery and plant for which higher rate of dep....

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....ts. For the relevant assessment years 1992-93 and 1993-94 it has claimed depreciation on tippers at 40 per cent. The Assessing Officer restricted the depreciation on tippers to 25 per cent. On appeal, the Commissioner of Income-tax (Appeals) confirmed the order of the Assessing Officer. On further appeal to the Tribunal, the Tribunal held that the tippers are nothing but motor lorries with extra f....

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....poses of the business or profession. Section 43(3) is applicable to the interpretation of sections 28 to 41 of the Act. Rule 5 of the Income-tax Rules, 1962, reads as follows : "5. Depreciation.---(1) Subject to the provisions of sub-rule (2), the allowance under clause (ii) of sub-section (1) of section 32 in respect of depreciation of any block of assets shall be calculated at the percenta....

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....t. in respect of motor lorries and 25 per cent. in respect of plant and machinery. The main argument advanced by learned counsel for the Revenue is that there is no dispute that the tippers which are used by the assessee fall under the category of motor lorries, but item III of sub-item 2(ii) of Appendix I is applicable only to motor cars which are used in the business of the assessee and since....