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TMI Blog2011 (7) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice for final disposal. In other appeals, same question however with differing amounts involved has been framed with respect to same assessee and notice for final disposal has been issued. 4. Respondent assessee had claimed depreciation at the rate of 40% on vehicles leased by it to Ahmedabad Municipal Corporation on the premise that such higher rate of depreciation was available since the vehicles were used in the business of hire. It was however, the case of the Revenue that since the assessee itself did not use the vehicles for running them on hire, assessee would be eligible to claim depreciation at normal rate of 25%. The Assessing Officer did not accept the claim of the assessee for higher depreciation. In Appeal, CIT(Appeals) allowed depreciation at the rate of 40%. Revenue preferred appeal before the tribunal. The tribunal however, dismissed the appeal upon which the Revenue has filed the present appeal. 5. Counsel for the Revenue submitted that issue is no longer res integra. The Apex Court in case of Commissioner of Income Tax v. Gupta Global Exim P. Ltd. reported in (2008) 305 ITR 132(SC) has already taken a view against the assessee. Our attention was drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions to contend that since in previous years Revenue did not carry this question in appeal, present appeals should not be entertained. 1) State of U.P. and another v. Synthetics and Chemicals Ltd. and anr. reported in (1991) 4 Supreme Court Cases 139 2) Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others reported in (1990) 3 Supreme Court Cases 682 3) Fuerst Day Law son Ltd. v. Jindal Exports Ltd. reported in (2001) 6 Supreme Court Cases 356. 4) Agarwal Finance Co.P .Ltd. v. Commissioner of Incometax reported in (2011) 332 ITR 549(Cal) 6.4 Counsel further contended that decision in case of Bhagwati Appliance (supra) is rendered per incurium and that therefore, this Court should not follow the same. 7. Having heard learned counsel for the parties, we find that it is not in dispute that the assessee is not in the business of running vehicles on hire. It is undisputed that the assessee had leased the vehicles to Ahmedabad Municipal Corporation and if at all, such vehicles were run by Ahmedabad Municipal Corporation on hire. 8. With this factual clarity, if we peruse the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reliance has been placed on behalf of the appellants are also along the same lines and do not in any manner support the case of the appellant. Moreover, the controversy involved in the present case stands more or less concluded by the decision of the Supreme Court in the case of Commissioner of Income Tax v. Gupta Global Exim Pvt. Ltd . (supra), wherein the Court has held that under item (2)(ii) of heading III of the depreciation table given in Appendix I to the Income Tax Rules, 1962, the higher rate of depreciation is admissible on motor trucks used in a business of running them on hire. Therefore, the user of the same in the business of the assessee of transportation is the test. 13. In the facts of the present case, as noticed hereinabove, all the authorities below have recorded that the assessee company is a leasing company which is engaged in leasing of plant and machinery, motor cars, etc. to its client. It is neither the case of the assessee nor is there anything on record to indicate that the assessee uses the vehicles in question in its business of transportation or that the assessee is engaged in the business of hire. In the circumstances, the basic requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when the Supreme Court has has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of the Supreme Court. Article 141 embodies as a rule of law, the doctrine of precedents on which judicial system is based. 13.1 In case of Synthetics and Chemicals Ltd. and anr. (supra), the Apex Court observed that 'incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. 13.2 In case of Fuerst Day Law son Ltd. v. Jindal Exports Ltd (supra), the Apex Court relying on several decisions on the issue of per incuriam, observed as under : A prior decision of this court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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