TaxTMI 
TaxTMI 
1988 (9) TMI 71
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....asmuch as the ITO had allowed depreciation all the rate of 30 per cent and "dumpers" being used by the assessee in its business of construction of roads. The learned CIT was of the opinion that depreciation on dumpers was available at the rate of 15 per cent only under item III-B(14)(of Appendix I Part i of r. 5 and not under Item III-D(4) of the said Appendix. He, therefore, invoked his jurisdiction under s. 263 of the Act and issued a combined show cause notice t the assessee indicating his intention to pass suitable orders with a view to modify the orders of the ITO. 3. IN response to the show cause notice, the assessee furnished written submissions wearing it was contended that the dumpers had been used for 'earth moving work' and we....
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....e order dt. 22nd Feb., 1983 passed under s. 263 and that also on the question of investment allowance on the dumpers. According to the learned counsel, no attempt was made to disturb the figure of depreciation already allowed by the ITO at 30 per cent. It was further submitted that consequent to the order under s. 263, the ITO once again reformed the assessment and that also after obtaining the necessary instructions of the IAC under s. 144B. The claim of investment allowance, according to him, was once again allowed by the ITO, acting under the directions of the IAC and depreciation at 30 per cent on dumpers was once again allowed. It was submitted that it was this second order of the ITO dt. 27th April, 1983 which was modified by the CIT ....
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....d come to the conclusion that the dumpers were being used by the assessee as "earth moving machinery". 8. At This stage, we would reproduce the relevant portions of the observations of the IAC in s. 144B proceedings and to which a specific reference was made by the assessee's counsel. They are as under: "I have considered the facts of the case, the submissions and the contentions of the assessee's counsel. I find it as a matter of fact that the assessee uses the dumpers for the purpose of construction of roads as earth moving machinery only". Further considering the normal purposes for which dumpers are used, they cannot be described as "road transport vehicles" in spite of the fact that they may be required to be registered by the....
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.... the powers under s. 263 over and over again in respect of the same assessment year and at each occasion in respect of a different item. It was accordingly submitted that although on merits, the assessee's claim was maintainable, even on the question of jurisdiction the order of the CIT deserves to be set-aside. Before concluding his arguments, the assessee's counsel invited our attention to a circular dt.11th Oct., 1985 issued by the Ministry of Industry and Company Affairs wherein dumpers had been classified a "earth moving machinery". him finally made an impassioned plea for the acceptance of the assessee's claim on merits. 10. The learned departmental representative in the course of his arguments, strongly supported the consolidated ....
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....Part 1, r.5 and not under item III B(14) of the said Appendix. At this stage it would be necessary to reproduce the relevant entry, viz., Item III-D(4) of Appendix I, part 1: (4) Earth-moving machinery employed in heavy constriction works, such as dams, tunnels, canals etc. "According to us the aforesaid description is only illustrative and not exhaustive since the word used is 'etc". We are also of the view that as far as earth moving work is concerned, it would be the same, whether the construction is that of a road, canal, dam or a tunnel. It would be the same dumper that would have to be said for this type of work although in some cases the earth moving work may be more rigorous and tougher that in other cases, This, however, woul....