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TMI Blog1996 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Tribunal was justified in directing the Income-tax Officer to allow extra depreciation and investment allowance for dumpers which claim had not been put up by the assessees before the Income-tax Officer but was for the first time taken by them before the Commissioner of Income-tax in proceedings under section 263 of the Income-tax Act ? " All the three matters are being disposed of by this common order as the question involved is common. The dispute in the present matter relates to the claim for depreciation on dumpers owned by the assessees. They derived income from owning of mines, extracting stones and selling them. The Income-tax Officer treated the dumpers as road vehicles and allowed depreciation at the rate of 40 per cent. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under section 263 before the Commissioner of Income-tax the assessee conceded that the dumpers are earthmoving machinery and, therefore, depreciation should be given as allowance to mining machinery under section 32(1)(iia) and section 32A since they were new and purchased during the year. This request was turned down on the ground that the claim was not initially made and the Income-tax Officer was directed to allow depreciation allowance at the rate of 30 per cent. on dumpers as mining machinery. Before the Tribunal it was pleaded that the dumpers being mining machinery, the assessee should have been permitted to revise his claim. The Income-tax Officer was directed to consider the claim for extra-depreciation and investment allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under : " (8) Mines and quarries.---Portable underground machinery and earthmoving machinery used in open cast mining (N.E.S.A.). (9) Motor buses and motor lorries other than those used in a business of running them on hire (N.E.S.A.)." The assessee claimed depreciation at 40 per cent. under item No. 1A of Table 3E which is as under : " (1A) Motor buses, motor lorries and motor taxis used in a business running them on hire (N.E.S.A.)." While interpreting the above entries it was found by the Commissioner of Income-tax that dumpers did not fall in the category of motor vehicles and the assessee was not using the dumpers in the business of running them for hire. The dumpers cannot be equated with road transport vehicles. It was on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umpers are required at places to run at a particular speed is not to detract from the position otherwise clear that they are adapted for use on roads. The very nature of these vehicles makes it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the dumpers or rockers are heavy and cannot move on the roads without damaging them, is not to say that they are not suitable for use on roads. In Union of India v. Chowgule and Co. Pvt. Ltd., AIR 1992 SC 1376, it was observed that the mere fact that dumpers are used solely on the premises of the owner, or that they were in closed premises, or permission of the authorities was needed to move them from one place to another, or that they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer was prejudicial to the interests of the Revenue. For whatever reason a direction has been given that the assessee is entitled to claim depreciation at the rate of 30 per cent. and not 40 per cent. and the claim for depreciation and investment allowance could have been raised before the Commissioner of Income-tax who could have directed the assessing authority to take into consideration the claim so made on the basis of evidence on record. In the case of CIT v. Sun Engineering Works P. Ltd. [1992] 198 ITR 297 (EC), in the matter of proceedings under section 147, it was held by the apex court that the Income-tax Officer may bring to charge items of income which had escaped assessment other than or in addition to the item or items whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile Mills Ltd. [1967] 66 ITR 710 (SC), the powers of the Tribunal were considered with reference to the words " as it thinks fit " used in section 33(4) of the Indian Income-tax Act, 1922, and it was observed by the apex court that there is nothing in the Income-tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of facts, which relate to the assessment of the assessee, may be raised before the Tribunal. If for reasons recorded by the Departmental authorities in respect of a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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