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TMI Blog2013 (4) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has not used the said security vans for its business of transportation of cash, valuables etc., or the same has not been used mainly for business of the assessee of transportation of cash, valuables etc. In case in CIT vs. Gupta Global Exim P. Ltd. [2008 (5) TMI 7 - SUPREME COURT] the assessee's main business was importing timber longs and selling them. Whereas in the case before us, the assessee has proved that the transportation of cash and valuables was its main business. Thus the decision relied on by the DR in CIT vs. Gupta Global Exim P. Ltd [supra] is distinguishable and not applicable to the facts of the present case. That being so the revenue has failed to controvert the finding of the CIT[A] that the assessee is entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item III (2) (ii) of Appendix 1 to the Income Tax Rules, 1962, both on the opening WDV of the block as well as additions made thereto. The assessee also submitted a detailed reply vide letter dtd. 14/12/2009 which is on similar lines as was done in the earlier assessment years. However, the A.O. after relying on certain decisions allowed the depreciation on security van at 15% as against the claim of the assessee at 30% on the ground that the assessee is not engaged in the business of running the vehicles on hire and accordingly disallowed the excess claim of depreciation Rs. 33,61,078/- and added the same to the total income of the assessee and thereby completed the assessment at an income of Rs. 15,05,59,030/- vide assessment order dtd. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. M/s Brinks Arya India Pvt. Ltd. Vide judgment dtd. 5-12-2011 has also dismissed the special leave petition filed by the Revenue. He also placed on record the copy of the said decisions. He, therefore, submits that the order passed by the ld. CIT(A) allowing the rate of depreciation at 30% as against 15% allowed by the A.O. be upheld. 6. We have carefully considered the submissions of the rival parties and perused the material available on record. We are of the opinion that the issue involved in the present case is no more res integra and is covered by the following decisions:- 7. In DCIT vs. M/s Brink's Arya India Pvt. Ltd. in ITA No. 5086, 5278 7175/Mum/2005 for assessment years 2001-02 to 2003-04 order dtd. 30-3- 2009 it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used in a business of running them on hire. In CIT vs. Gupta Global Exim P. Ltd [S.C] [supra], there is a categorical finding of the AO that the assessee was occasionally in the business of transportation and mainly he was in the business of importing timber longs and selling them in India. Their Lordships while observing that "the user of the same in the business of the assessee of transportation is the test." Held that merely because the income from letting of the trucks on hire was included in the business income, the higher rate would not apply. However, the matter was remanded for fresh decision to the Commissioner [Appeals] as to whether the assessee was in the business of running the motor buses on hire. However, in the case before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Appeals No. 802 of 2010 and Others vide judgment dtd. 29-03-2011, the Hon'ble jurisdictional High Court has observed and held as under:- "Whether the Tribunal was justified in holding that the assessee is entitled to higher depreciation at 40% when the assessee was not engaged in the business of giving the vehicles in hire, is the question raised in these appeals. The Tribunal has held that the assessee has proved that the security vans have been used for transportation of cash, valuables belonging to the third parties as that is the business of the assessee. This fact is not disputed. Thus, the decision of the Tribunal is based on finding of fact and no substantial question of law arise in these appeals. All the appeals are dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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