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TMI Blog2013 (7) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial motor lorries. It is a special type of industrial truck which provides special services of lifting load, moving it side by side, rotating it or moving it horizontally. Most industrial trucks permit mechanized pick up and deposit of the loads, eliminating manual work in lifting as well as transporting. It will thus, be clear that motor vehicles like fire trucks, fork lifts trucks, crane trucks and reach stacker which are designed for special services fall within the category of "motor trucks" (also called "motor lorries". Even the Revenue in future assessment years has allowed the claim of the assessee. Once fall under this category, the assessee is entitled the depreciation at 40 per cent. and this view is supported by case of Gujco Carriers v. CIT [2002 (2) TMI 48 - GUJARAT High Court] - Decided in favour of assesse. - ITA No.343/Kol /2011 - - - Dated:- 11-7-2013 - Shri N.S. Saini and Shri Mahavir Singh, JJ. For the Appellant : Shri S. Jhajhoria AR Shri Sujay Sen, AR For the Respondent : Shri K.K. Tripathi, SRDR ORDER Mahavir Singh (Judicial Member).- This appeal by the assessee is arising out of the order of Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Income-tax (Appeals), who confirmed the action of the Assessing Officer by observing in para 4 of his order, which reproduced as under : 4. I have carefully considered the above submissions of the learned authorised representative. First of all let us see the type of assets on which depreciation is allowable at 40 per cent. for the assessment year 2005-06. As per Appendix 1A read with rule 5(1A) of the Income-tax Rules, for the assessment year 2005-06 depreciation at 40 per cent. was allowable for the following assets : 'Motor buses, motor lorries and motor taxis used in a business of running them on hire.' Here, the 'reach stacker' used by the assessee is neither motor bus nor motor taxi. The learned authorised representative has claimed that it should be treated as a 'motor lorry'. In this respect I would like to point out that as per the registration certificate of the RTO produced by learned authorised representative this reach stacker has been registered as 'H.G.V. non-transport' and its type has been shown as a 'mobile crane'. These facts clearly show that this machinery 'reach stacker&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over a distance as also the fact that the crane is capable of motion, being mounted on wheels, does not take way its essential character of being a machinery used in mining. The crane was used in the quarry, and not on public roads, for moving the granite mobile crane used in quarrying operation was not a road transport vehicle but an item of machinery and was entitled to additional depreciation.' In view of the above discussion I hold that 'reach stacker' used by the assessee in its business of cargo handling is a machinery on which depreciation is allowable at the rate of 25 per cent. and not 40 per cent. Therefore, I confirm the disallowance of depreciation of ₹ 39,28,138 made by the Assessing Officer. Aggrieved, the assessee came in the second appeal before us. 4. We have heard the rival contentions and gone through facts and circumstances of the case. We find that the Assessing Officer during the course of assessment proceedings noticed from the schedule of depreciation that the assessee has claimed depreciation on reach stacker at 40 per cent. According to Assessing Officer, reach stacker does not fall in the category of heavy motor vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts in entirety, we are of the view that reach stacker which is a sophisticated mobile crane manufactured by TIL Limited with a brand name RSL 45 is nothing but motor car also called motor lorries under the heavy goods vehicle. Heavy goods vehicle as per section 2 of the Motor Vehicle Act, 1988 means any goods carriage the gross weight of which, or a tractor or a road roller the unladen weight of either of which, exceeds 12,000 kilograms. Certificate of registration issued by the Regional Transport Officer, Kohima, Nagaland as mobile crane having vehicle No. NL 01 G 1810 proves that reach stacker is a mobile crane under the heavy goods vehicle. Nature and utility of the reach stacker will clear the type of vehicle and help us to come to the conclusion that reach stacker is nothing but a industrial motor car and/or industrial motor lorries. It is a special type of industrial truck which provides special services of lifting load, moving it side by side, rotating it or moving it horizontally. Most industrial trucks permit mechanized pick up and deposit of the loads, eliminating manual work in lifting as well as transporting. It will thus, be clear that motor vehicles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which higher depreciation allowance at the rate of 40 per cent when used for hire and at 30 per cent when not so used has 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, is an over-simplification 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 is mounted required ascertainment of facts and fresh investigation, amounts to imposing a burden on a person to prove something of which a court or the Tribunal can take judicial notice. For example, if a witness deposes that he had seen a horse, the court need not insist upon him for a proof of the anatomy of a horse and can take a judicial notice of the horse as an animal. The courts and Tribunals are not required to act dumb or ignorant of the facts of which judicial notice can be taken. Thus, just as a court can presume what a horse is, it can as well know what a crane is, and also that crane is an integral part of a truck-crane which is registered as a heavy motor vehicle. Lack of effort and knowledge sufficient for taking such judicial notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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