9911796707
TMI Blog2010 (12) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved, the assessee took up the issue with the Ld. CIT(A) for solace. After due consideration of the assessee's contentions and also elaborately analyzing the case laws on which the assessee had placed its strong reliance, the Ld. CIT (A) had observed thus - "4................. The preposition (sic) proposition laid down in the decision of Hon'ble Gujarat High Court [Gujco Carriers v. CIT - 256 ITR 50 (Guj)] relied upon by the appellant is that in that case the mobile crane of the assessee was admittedly registered as a 'heavy motor vehicle' like 'motor trucks' and 'motor lorries' as provided in Entry-IIIE (1A) of the table in Appendix-I under Rule 5 of the I.T. Rules 1962. the function of the JCB machine is excavation of the land which is categorized as earth moving equipment and construction machine which falls in the category of Plant and Machinery. Looking at the operations and the functions of the JCB machine, it cannot be equated with the 'motor lorry' or 'motor trucks' which are registered as 'heavy motor vehicle'. The motor trucks and motor lorries transport the goods and passengers from one place to the other place and are registered with the RTO for this purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the excavators and road rollers were motor vehicles for the purpose of registration under Motor Vehicles Act, that they were suitable for use on roads and merely because a motor vehicle was put to a specific use such as being continued to an enclosed premises will not render the same to a different kind of vehicle [AIR 2001 SC 835; - CIT(A) erred in coming to a conclusion that JCB Earth Mover was neither registered with RTO as a 'heavy motor vehicle' nor its functions and operations were similar to that of a motor trucks/motor lorries and, hence, was not eligible for higher rate of depreciation at 30% 5.1. During the course of hearing, the Ld. A R had furnished an affidavit and also sought permission of this Bench to adduce evidence in the shape of RC records of the JCB Earth Movers registered with jurisdictional RTO, Notification of State Government, case laws etc. to drive home his point in favour of his client. 5.2. On the other hand, the forceful arguments put-forth by the Ld. DR are summed up as under: - the definition of the term 'motor vehicle' as per the MV Act was that 'motor vehicle or vehicle means any mechanically propelled vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caled down to 15% by the AO on the ground that the actual depreciation allowable in respect of those machines was only at 15%. It was valiantly put-forth before the CIT (A) that JCB machines fall within the category of motor trucks and motor lorries and, therefore, the assessee was entitled to depreciation at 30% at par with the motor lorries etc., However, the Ld. CIT (A), for the reasons recorded in his impugned order which is under dispute, shot down the assessee' s claim especially on the ground that "...... unlike 'motor lorries' and motor trucks, the JCB machine is not registered as a heavy motor vehicle and registered as a 'excavator and loader machine' with the RTO. The JCB machine thus, falls in the category of a particular type of machinery for the purpose of excavation of land which falls under the plant and machinery and the applicable rate of depreciation in respect of JCB machine, it being a part of plant and machinery is 15% as against 30% claimed by the appellant. The functions and operations of JCB machines are entirely different than the functions and operations of 'motor lorries' and 'motor trucks' and the purpose of use is also different." 6.2. We have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or a motor truck or motor vehicle, as the case may be and, thus, in our considered view, the ruling of the Hon'ble Court cannot be roped in to come to the rescue of the present assessee. 6.5. In the case of Gaylord Constructions v. ITO reported in (2008) 175 Taxman 0099 (Coch)(Mag.), the Hon'ble Tribunal had observed that - "12.3. It will, thus, be clear that motor vehicles like fire trucks, fork-lift trucks and crane trucks which are designed for special services, fall within the category of 'motor trucks' (also called 'motor lorries'). As far as JCBs are concerned, JCB is coming in the category of excavator and its main function is removing the soil or earth at the same time, JCB's another function is to carry or transport the removed soil and dump it at another site to discharge the function like transshipment and loading into another vehicle. In our opinion, for the purpose of rates of depreciation JCB can be treated as a motor lorry and, hence, eligible for higher rate of depreciation at 40%. We, therefore, direct the assessing officer to allow depreciation at 40 per cent on JCNB in place of 25 per cent." 6.5.1. With due respects, we have peru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence either before the authorities below or before this Bench to assert that the JCB machines of the assessee had indulged not only in excavate the soil, but, transported the removed soil to another place as well so as to take sanctuary under the finding of the Hon'ble Tribunal cited supra. 6.5.5. As rightly highlighted by the Ld. CIT (A) in an elaborate manner, the functioning and operation of a JCB machine, as described supra, cannot be equated either with a motor lorry or a motor truck which will be registered as a heavy motor vehicle as they will be assigned to carry/transport materials from one place to another place on the roads whereas JCB machine will be put into operation for a specific purpose - dig out soil/quarry in a factory premises or in any other enclosed premises. The JCB machine invariably falls within the scope of a particular type of a machinery for the sole purpose of excavation of soil/earth which comes under the purview of 'plant and machinery' and so the applicable rate of depreciation in respect of JCB machines being 'plant and machinery' is only at 15% and not 30% as claimed by the assessee. 7. Let us now have a glance at the Entry Tax N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cteristics as that of motor buses, motor lorries etc. is not appreciable. Under section 2 of the Motor Vehicles Act, there are distinct definitions for motor car, contract carriage, goods carriage, heavy goods vehicle, heavy passenger motor vehicle, light motor vehicle, motor cycle etc. and last but not the least 'Motor vehicle. The general definition of motor vehicle as per section 2(28) of the Motor Vehicles Act, 1988, cannot be fitted into the Income-tax Act. This definition is an extensive definition which includes all kinds of mechanically propelled vehicles including a trailer. The scope of the Motor Vehicles Act is to bring into its fold all kinds of moving objects plying on the roads under its ambit so as to provide safety measures and regulate traffic. Therefore, any objects which moves on the road by itself such as harvesting combines, road layers, cranes on wheels, etc. requires registration under the Motor Vehicles Act. However, while claiming depreciation under the Income-tax Act, only the relevant provisions of the Income-tax Act has to be applied. 9. In an overall consideration of the facts and circumstances of the issue and also the relevant facts which have ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
