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TMI Blog2015 (1) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the matter assessee's Cross Objection is liable to succeed. Accordingly Cross Objection of the assessee stands allowed. - Decided in favour of assessee. Reopening of assessment - depreciation on Tata & JCB loaders @ 40% are excessive whereas @25% is allowable - Order u/s 263 by the C.I.T. by dropping the proceedings after accepting the plea of the assessee - Held that:- Once the issue has already been examined and held in favour of the assessee u/s 263 of the Act the same cannot be the subject matter of reopening by the AO. In this view of the matter we hold that the assumption of jurisdiction by the AO in this case was bad in law and accordingly we set aside the reopening.- Decided in favour of assessee. - ITA Nos. 58-61/Kol/2013, CO Nos. 25&26/Kol/2013, ITA Nos. 58 & 59/Kol/2013 - - - Dated:- 19-12-2014 - Mahavir Singh, JM And Shamim Yahya, AM,JJ. For the Appellant : Smt Madhu Malati Ghosh, JCIT For the Respondent : Shri Somnath Ghosh, Adv. ORDER Per: Shamim Yahya: These appeals by the revenue and Cross Objections by the assessee emanate out of the respective orders of CIT(A)-XX, Kolkata for the concerned assessment years. Since the issues are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d income from Commercial Vehicles/Other equipments/Auto Bagging Standardisation work in the sum of ₹ 3,51,43,929 which was duly considered in the net profit of ₹ 6,72,14,954 disclosed in the return. Therefore the observation of the ld. CIT on this account that these wheel loaders may be used in the business of the assessee but these are hot hired out to others has no legs to stand on. We find force in the arguments of the ld. Counsel of the assessee that the assessee is entitled to depreciation at the rate of 30 per cent on the Dumpers/Excavators, Crane mounted vehicles, Vehicles fitted with construction equipments and other Tata, JCB and 400V wheel Loaders which are registered as Heavy or Medium Motor Vehicles by the Regional Transport Officer and therefore clearly falls within the ambit of the expression Motor Lorries appearing in entry No.III(3)(ii) of Part A of Appendix I of the Income-tax Rules, 1962 since they are used in the business of hiring them out to others. They are fitted with diesel engines, hydraulic brakes and pneumatic tyres. These are four wheeled multi-utility vehicles used for excavation of earth and movement of the same is limited within sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that the earth moving equipment, JCB, which are used on hire for excavation of soil are utilized equally for transport of the excavated soil or other loads for a limited distance and therefore it serves as a transport equipment as well and so long as it is registered as a motor vehicle with the RTO it is eligible for depreciation at the rate of 40 per cent. Therefore in the instant case, the Tata, JCB and 400V wheel loaders are covered within the expression motor lorries which are used in business of running them on hire and the Assessing Officer had correctly allowed the claim of depreciation under section 32 in the sum of ₹ 78,05,251 applying the rate of 30 per cent assigned to entry No.III(3)(ii) of Part A of Appendix I of the Income-tax Rules, 1962 applicable for as motor buses, motor lorries and motor taxis used in a business of running them on hire and the impugned order passed by ld. CIT is unsustainable in law being in contravention of the settled legal position in this respect, is hereby quashed. The appeal of the assessee is, therefore, allowed. 4.1. From the above it is apparent that the Tribunal in assessee's own case has decided the issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly JCB which is used on road is registered as a motor vehicle. Though it is not used as a transport vehicle, JCB is a four-wheeled excavator-cum-transport vehicle used for excavation of earth and movement of the same, though for limited distances. Even though the purpose of Motor Lorry which is a heavy motor vehicle used for transport of goods from place to place, cannot be served by a JCB, we are of the view that the expression motor lorry covered by the above entry of the Income-tax Rules providing for higher rate of depreciation, has a wide meaning. JCB though basically is used for excavation of soil, it is a heavy vehicle also used for transport of excavated soil, sand or other goods, for a limited distance and the machine is also used to level and shape the land. Therefore, it serves as a transport equipment as well and so long as it is registered under the Motor Vehicles Act, it is a motor vehicle within the meaning of the said term as held by the Supreme Court in the decision above referred. We therefore feel that in a larger sense JCB answers the description of Motor Lorry within the meaning of the entry referred above contained in the Income-tax Rules. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne' when used for an inanimate object means a machine for moving heavy objects usually by suspending them from a projecting arm or beam. Crane is any of a diverse group of machines that not only life heavy objects but also shift them horizontally. Movable cranes are mounted on railway cars, motor trucks or chassis equipped with caterpillar treads and the hoisting machinery is mounted so as to counterpoise part of the load on the boom and thereby preventing the entire crane from overturning while carrying the load. The fork-lift truck, widely used for moving goods between warehouse storages and shipping vehicles, is a highly maneuverable crane adaptable to handling drums, crates, or loaded skids or pallets. - Encyclopaedia Britannica under the heading 'Crane'. Thus, a 'fork-lift truck' is also a type of crane. The expression 'truck crane' is wellknown in the truck industry. The truck crane is a unit consisting of a crane house and boom mounted on a truck chasis, ..Originally assembled by contractors from crawler cranes and truck parts, the truck crane for years has been manufactured and sold as a unit. Although the truck crane is difficult to move o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting and moving heavy objects. That is why such mobile crane is registered as a heavy motor vehicle which is a heavy goods vehicle as defined in section 2(16) of the Motor Vehicles Act. The approach of the Tribunal and the authorities below is that cranes are not mentioned specifically as an independent item falling in the categories for which higher depreciation allowance at the rate of 40 per cent when used for hire and at 30 per cent when not so used had been provided as against 10 per cent of machinery in general and, therefore, they should be treated as falling in the general category of machinery, was an oversimplification of the matter. The approach of the Tribunal that the plea taken by the assessee that crane was an integral part of the motor vehicle on which it was mounted required ascertainment of facts and fresh investigation, amounted to imposing a burden on a person to prove something of which the Court or the Tribunal could take judicial notice. Lack of effort and knowledge sufficient for taking such judicial notice should not be a burden on the citizens in judicial proceedings. As provided by section 56 of the Evidence Act, no fact of which the Court will take ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation. Order u/s 263 passed by the C.I.T. directing the AO to allow depreciation @15% vis-a-vis 30% claimed by the assessee. AO framed order u/s 143(3)/263 allowing depreciation @15%. Hon'ble ITAT Kolkata C Bench quashed the order of the CIT. The appeal against the order u/s 143(3)/263 was allowed since Hon'ble I.T.A.T., Kolkata quashed the order of the CIT. The instant appeal is liable to dismissed in limine. 4.5. We find that the above plea of the assessee is quite germane and since the order u/s 263 of the Act passed by the ld. CIT has been quashed by ITAT. This order passed pursuant to the order u/s 263 of the Act by the AO is liable to be dismissed and as such the present appeal liable to be dismissed in limine and is accordingly dismissed as such. C.O.No.25/Kol/2013 A.Yr.2004-05 5. In the Cross Objection assessee's grievance is that AO has erred in assuming jurisdiction u/s 154 of the Act. We find that the assessee has raised this issue before the ld. CIT(A) who did not adjudicate upon these issues. We note that for this A.Yr.2004-05 return of income was filed on 18.10.2004 disclosing total income of ₹ 36,47,870/-. The depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that the issue could not have been taken by the AO u/s 154 of the Act in as much as the issue was debatable and it required investigation both on facts as well as applicability of law. In this view of the matter assessee's Cross Objection is liable to succeed. Accordingly Cross Objection of the assessee stands allowed. C.O.No.26/Kol/2013 (A.Yr.2005-06): 6. In this Cross Objection the assessee has agitated that the ld. CIT(A) failed to appreciate that AO has erred in assuming jurisdiction u/s 147 of the I.T.Act. The submissions of the assessee in a nutshell in this regard are as under:- Return filed on 27-10-2005 disclosing income of ₹ 2,65,03,973/-. Depreciation on Commercial Transport Vehicle claimed at @ 40% since the same is falling within the scope of entry no.III(3)(ii) of Part A of Old Appendix I. Assessment order u/s 143(3) of the Act accepting such depreciation. Notice u/s 263(1) dated 06-01-2009 for revision, inter alia, containing the issue of depreciation. Order u/s 263 by the C.I.T. by dropping the proceedings after accepting the plea of the assessee. Notice u/s 148 dated 19-06-2009 issued after scrutiny of assessment recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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