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TMI Blog2017 (12) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the functional similarly with the nature of activity performed by the listed machine has to be done to determine under what category a particular machine would fall. We also found that CBDT vide Instruction No.617 dated 13.09.1973 has even included “forklift” in the category of motor vehicle entitled for higher depreciation of 30%. The Hon. Supreme Court in the case of Chairman Rajasthan State Road Transport Corp and Other-vs-Santosh and Others (2013 (5) TMI 965 - SUPREME COURT) have analyzed the definition of the term motor vehicle to hold even a tractor to be motor vehicle as it is capable of being adapted to run on public roads. Thus no merit in action of lower authorities for declining higher claim of depreciation at 30% on Crawler ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that the revenue had filed appeal before the Hon‟ble High Court but requested for withdrawal and therefore the Hon‟ble High Court dismissed the appeal. The order of the Hon‟ble Tribunal granting higher depreciation on cranes in the assessee‟s own case therefore became final. Copies of the relevant orders are also placed on record. 6. We have gone through the orders to the authorities below as well as the order of ITAT and Hon‟ble High Court wherein appeal filed by the revenue is dismissed as withdrawn. On merits, as per entry III(3)(ii) of Part A of Appendix I to I.T.Rules 1962, motor buses, motor lorries and motor taxies used in a business of running them on hire are entitled for depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined under the Income Tax Act 1961. Accordingly, we have to rely on the definition of the said term as contained in Sec. 2(28) of the Motor Vehicles Act 1988. The term "motor vehicle" as per the said act reads as under. Sec.2(28) "Motor vehicles", or "Vehicle" means any mechanically propelled vehicle adopted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicles of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than 4 wheels fitted with engine capacity of not exceeding twenty f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in port / factory premises and therefore do not require permanent registration under the Motor Vehicles Act, 1988. In the course of asst. proceedings, it was further explained that even though the crawler cranes were not registered with road transport authorities directly, in certain states, it was required to pay vehicle tax by obtaining temporary permit for the period of its operation in the state. The ld. AO unfortunately has assumed such payments to be in the nature of temporary entry tax. The transport vehicles in Gujarat are governed of Bombay Motor Vehicle Tax Act 1958 which extends to the whole state of Gujarat. The fees paid for temporary permits issued by Gujarat Motor Vehicle department permitted operation of the crawler cranes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forklift" in the category of motor vehicle entitled for higher depreciation of 30%. The Hon. Supreme Court in the case of Chairman Rajasthan State Road Transport Corp and Other-vs-Santosh and Others 7 SCC 94 (SC)(2013) have analyzed the definition of the term motor vehicle to hold even a tractor to be motor vehicle as it is capable of being adapted to run on public roads. 15. This issue of cranes being entitled for depreciation as a motor lorry has been examined in several judicial proceedings including in the appellants own case for A.Y.1998-99. The decisions relied upon are as under. (i) DCIT Vs. Samarath Lifters Pvt. Ltd., ITA No.430/M/02, Hon. Members "G" Bench ITAT, Mumbai dated 20.12.2004 for A.Y.1998-99. (ii) CIT Vs. Samarth Li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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