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TMI Blog2016 (11) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... lement of ‘hiring’ was absent. The Bombay High Court in the case of CIT vs M/s SC Thakur & Bros [2009 (1) TMI 20 - BOMBAY HIGH COURT ] has clearly held that Circular No.652(supra) was admissible when the motor lorries were used by the assessee in its own business of transporting of goods on hire. Thus the assessee is entitled for depreciation on dumpers and pay loaders at the higher rate - Decided in favour of assessee - I.T.A.No. 203/Mds/2016 - - - Dated:- 9-9-2016 - SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER For The Appellant : Shri A.V. Sreekanth, JCIT For The Respondent : Shri S.P. Palaniappan, CA ORDER PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER This appeal of the Revenue is directed against the order of the Commissioner of Income-tax (Appeals)-2, Chennai, dated 30.10.2015 for assessment year 2010-11. 2. Its grievance is that the CIT(A) extended the benefit of higher depreciation for pay loaders, dozers and water tankers used by the assessee . 3. Facts apropos are that the assessee, engaged in the business of transport, had filed his return for the impugned assessment year declaring income of ₹ 35,79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries, buses and pay loaders and like items used by it. Against the claim of ₹ 92,97,876/- the Assessing Officer allowed only ₹ 46,48,939/- thereby making a disallowance of ₹ 46,48,937/-. 4. Aggrieved, the assessee moved in appeal before the CIT(A). Argument of the assessee before the CIT(A) was that the Assessing Officer had failed to consider CBDT Circular No. 652(supra) in its proper sense. As per the assessee, meaning of the term hiring was something which was temporarily given for use for an agreed payment. Assessee also contended that pay loaders were similar to lorries with trolleys akin to lorries with long body. In support of its contention that it was engaged in the business of hiring, assessee furnished its Profit Loss Account which inter alia reflected income of ₹ 10.55 crores from business. Assessee also furnished partywise hire charges received. As per the assessee, out of the total 10.55 crores hire charges received, ₹ 9.39 crores was from M/s Anand Transport. Reliance was placed on the judgment of Bombay High Court in the case of CIT vs M/s SC Thakur Bros, 322 ITR 463 and that of Gauhati High Court in the case of ABC India Ltd v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 13.8.2015. 7. We have considered the rival contentions and the orders of the authorities below. There is no dispute that the assessee was engaged in the business of transportation of coal and iron ore. No doubt, a reading of the agreement entered into by the assessee with M/s Anand Transport clearly brings out that assessee was to supply pay loader for hatch work, loading materials into trucks from wharf and transporting the material from stockyard to Chennai Port Trust, carrying goods from stockyard to railway siding and loading of goods into railway wagon. The said contract dated 3.7.2006 clearly mentions that assessee could use pay loaders, dozers, water tankers, tippers given by M/s Anand Transport in addition to what were used by it. The consideration agreed was @ Rs. .35/- per metric ton. What the assessee was doing for M/s Anand Transport is given under the terms of payment appearing in clause 4 of the agreement entered with M/s Anand Transport and it is reproduced hereunder: 4. Payment: Supply of Pay Loader for Hatch work, Loading Coal from Wharf using Pay loaders, Transporting to stock yard within Chennai port, Hi-stacking at Stock yard, Loading into trucks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods on hire. In our opinion, the agreement entered by the assessee with M/s Anand Transport clearly shows that its duty was to transport the goods provided by M/s Anand Transport from one place to another. We cannot say that element of hiring was absent. The Bombay High Court in the case of CIT vs M/s SC Thakur Bros has clearly held that Circular No.652(supra) was admissible when the motor lorries were used by the assessee in its own business of transporting of goods on hire. In the said case, assessee was a civil contractor which was required to transport earth from one place to another as part of its contract work. The Kolkata Bench of the Tribunal in the case of Ashirbad Real Estate Transport Pvt. Ltd (supra) had held that dumpers and pay loaders used for transportation of goods of other persons would be eligible for higher rate of depreciation by virtue of CBDT Circular No.652 mentioned (supra). Para 4.3 of the said order is reproduced hereunder: 4.3. We have heard the rival submissions and perused the materials available on record. We find that the Learned DR did not refute the findings given by the Learned CITA with regard to the nature of business carried on by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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