M/s GTS Coal Sales(Minining), v. JCIT,

ITA 81/RAN/2013 | 2010-2011
Pronouncement Date: 27-11-2014

Appeal Details

RSA Number 8125114 RSA 2013
Assessee PAN AAHFG4092R
Bench Ranchi
Appeal Number ITA 81/RAN/2013
Duration Of Justice 1 year(s) 3 month(s) 3 day(s)
Appellant M/s GTS Coal Sales(Minining),
Respondent JCIT,
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2014
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 27-11-2014
Assessment Year 2010-2011
Appeal Filed On 23-08-2013
Judgment Text
INCOME TAX APPELLATE TRIBUNAL CIRCUIT BENCH RANCHI BEFORE HON'BLE SHRI H.L. KARWA PRESIDENT AND HON'BLE SHRI B.R. BASKARAN ACCOUNTANT M EMBER ITA NO . 8 1 /RAN/201 3 A.Y 20 10 - 11 M/S. GTS COAL SALES (MINING) VS. J.C.I.T RANGE - 1 DHANBAD PAN: A A HFG 4092R ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT : S/ SH RI S.K PODDAR & M.K.CHOUDHARY ADVOCATES LD.AR FOR THE RESPONDENT : SHRI DEEPAK ROSHAN SENIOR S.C LD.DR DATE OF HEARING : 2 7 - 11 - 2014 DATE OF PRONOUNCEMENT: 2 7 - 11 - 201 4 ORDER SHRI B.R. BASKARAN ACCOUNTANT MEMBER : TH E ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 22 - 05 - 2013 PASSED BY LD. CIT(A) DHANBAD AND IT RELATES TO THE ASSESSMENT YEAR 20 10 - 11. 2. THE ASSESS EE IS AGGRIEVED BY THE DECISION OF THE LD.CIT(A) IN CONFIRMING THE DISALLOWANCE OF HIGHER RATE OF DEPRECIATION CLAIMED ON ASSETS VIZ. DOZER HYDRAULIC EXCAVATOR AND TIPPERS. 3. W E HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. 4. THE ASSES SEE IS A PARTNERSHIP . IT IS ENGAGED IN THE CONTRACT WORK OF REMOVAL OF OVERBURDEN (OB) AND EXTRACTION AND TRANSPORTATION OF COAL FROM A SMALL PATCH OF AN AREA OF BCCL . THE ASSESSEE CLAIMED DEPRECIATION AT HIGHER RATE OF DEPRECIATION @ 30% ON SAID DOZER HYDRAULIC EXCAVATOR AND TIPPERS APPRENTLY O N THE GROUND THAT THEY WERE RUN ON HIRE . THE ASSESSING OFFICER HELD THAT THE ABOVE SAID ASSETS DO NOT FALL UNDER THE CATEGORY OF TRANSPORT VEHICLES. ACCORDINGLY HE HELD THAT THEY FALL UNDER THE CATEGORY O F HEAVY MACHINERY AND 2 ITA NO . 81 /RAN/13 M/S. GTS COAL SALES (MINING) RESTRICTED T HE DEPRECIATION TO 15% . THE LD.CIT(A) ALSO CONFIRMED THE SAID VIEW TAKEN BY THE ASSESSING OFFICER. 5. THE LD.AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJCO CAR RIERS VS. CIT REPORTED IN (2002) 256 ITR 50 (GUJ) HELD THAT THE EXCAVATORS USED FOR MOVING THE EARTH AND LIFTING MATERIALS IS A HEAVY MOTOR VEHICLE. HE FURTHER SUBMITTED THAT THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. RAKESH JAIN REPORTED IN (2013) 350 ITR 230(P&H) HAS HELD THAT THE TIPPERS ARE TRUCKS WITH THE HYDRAULIC ATTACHMENT FOR UNLOADING THE EARTH . ACCORDINGLY HE SUBMITTED THAT THE VEHICLES OWNED BY THE ASSESSEE FALL WITHIN THE CATEGORY OF MOTOR VEHICLE . 6. ON THE CONTRA RY THE LD.DR SUBMITTED THAT THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. GOTAN LIME STONE KHANIJ UDYOG REPORTED IN (2007) 299 ITR 368(RAJ.) HAS HELD THAT VEHICLES OF SPECIAL NATURE LIKE DUMPERS EXCAVATORS ARE NON TRANSPORT VEHICLES. HE ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS THESE VEHICLES AS MACHINERY ONLY. 7. THE LD. D R INVITED OUR ATTENTION TO THE DEPRECIATION SCHEDULE GIVEN UNDER THE I.T RULES AND SUBMITTED THAT HIGHER RATE OF DEPRECIATION AT 30% IS APPLICABLE TO VEHICLES USED IN THE BUSINESS RUNNING ON HIRE. HE SUBMITTED THAT THE QUESTION WHETHER THE ASSESSE E IS USING THE VEHICLES FOR RUNNING THEM ON HIRE WAS NOT EXAMINED BY THE ASSESSING OFFICER. HE HAD CONSIDERED THE M AS MACHINERY ONLY . ACCORDINGLY HE SUBMITTED THAT THIS M ATTER REQUIRES FRESH EXAMINATION. 8. IT IS WELL SETTLED PRINCIPLE OF LAW THAT THE DECISION IN FAVOUR OF THE ASSESSEE IS REQUIRED TO BE ADOPTED IN CASE OF CONTRADICTORY DECISIONS OF SAID TWO DIFFERENT HIGH COURTS. WE HAVE ALREADY NOTICED THAT THE H ON'BLE BLE GUJARAT HIGH COURT IN THE CASE OF GUJCO CARRIERS ( SUPRA) AND THE HON'BLE PUNJAB & HARYAN HIGH COURT IN THE CASE OF RAKESH JAIN (SUPRA) HAVE HELD THAT THE EXCAVATORS AND TIPPERS FALL UNDER THE CATEGORY OF HEAVY MOTOR VEHICLES. EVEN THOUGH TH ERE IS A CONTRADICTORY DECISION RENDERED BY THE SAID HON'BLE RAJASTHAN HIGH IN THE CASE OF GOTAN LIME 3 ITA NO . 81 /RAN/13 M/S. GTS COAL SALES (MINING) STONE KHANIJ UDYOG (SUPRA) WE ARE INCLINED TO FOLLOW THE DECISION IN FAVOUR OF THE ASSESSEE. ACCORDINGLY WE HOLD THAT DOZER HYDRAULIC EXCAVATOR AND T IPPERS AS OWNED BY THE ASSESSEE FALL UNDER THE CATEGORY OF MOTOR VEHICLE. 9 . THE LD. DR SUBMITTED THAT HIGHER RATE OF DEPRECIATION IS APPLICABLE ONLY THE VEHICLE FOR USED FOR RUNNING ON HIRE . HE HAS RIGHTLY POINTED OUT THAT THIS ISSUE WAS NOT EXAMIN ED BY THE ASSESSING OFFICER. WE FURTHER NOTICE THAT THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GUPTA GLOBAL EXIM (P) LTD REPORTED IN (2008) 305 ITR 132 HAS CLEARLY HELD THAT THE HIGHER RATE OF DEPRECIATION IS APPLICABLE TO THE VEHICLES ONLY IF IT IS USED BY THE ASSESSEE FOR RUNNING THEM ON HIRE. THE FACT ABOUT THE USAGE OF VEHICLES I.E. WHETHER THEY ARE RUN ON HIRE OR NOT REQUIRES EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD.CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE CLAIM OF ASSESSEE FOR HIGHER RATE OF DEPRECIATION IN ACCORDANCE WITH THE DECISION RENDER ED BY THE HON'BLE SUPREME COURT IN THE CASE OF GUPTA GLOBAL EXIM (P) L TD (SUPRA) A ND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW . WE ORDER ACCORDINGLY. 10 . IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED ACCORDINGLY ON 27 - 11 - 201 4 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARAN ] PRESIDENT ACCOUNTANT MEMBER DT. 2 7 - 11 - 2014 PLACE : RANCHI PP SR. PS COPY OF THE O RDER FORWARDED TO: 1. THE APPELLANT : M/S. GTS COAL SALES (MINING) P.O MOTINAGAR SINDRI 82 8120 DHANBAD. 2 THE RESPONDENT: THE JCIT R - 1 D BAD/CIT(A) D BAD 3. .THE CIT 4 ITA NO . 81 /RAN/13 M/S. GTS COAL SALES (MINING) 4.THE CIT(A) 5.DR ITAT CIRCUIT BENCH RANCHI 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR 5 ITA NO . 81 /RAN/13 M/S. GTS COAL SALES (MINING) 1. DATE OF DICTATION ............. 2 7 - 11 - 2014 ....................... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ........................OTHER MEMBER .... 28 ... - 11 - 2014 ........................ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ..................... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.................................. 2 7 - 11 - 2014 ................................................... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S ................ 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ......................................... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................................................................................................. 9. DATE OF DESPATCH OF THE ORDER ..............................................................