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TMI Blog1996 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... iation is to be allowed after examining certain particulars by the Income-tax Officer ? (3) Whether the Tribunal did not err in law as well as in facts in holding that deduction under section 32A is allowable even though the assessee's business is not covered by section 32A(2)(b) of the Income-tax Act, 1961 ? (4) Whether the Tribunal did not err in law as well as in facts in holding that the pucca structures built of cement, M. S. rod, G. I. pipes, etc., in addition to wood, etc., are temporary structures and depreciation is allowable at 20 per cent. in place of 71/2 per cent. as allowed by the Assessing Officer ? " The assessee is a registered partnership firm. The firm follows the mercantile method of accounting. The Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in common parlance. Therefore, the Tribunal modified the orders passed by the Income-tax Officer which was confirmed by the Commissioner of Income-tax (Appeals) and gave relief to the assessee accordingly. Regarding the depreciation on the temporary camp shed, which had been used by the assessee for residence and as godown to carry out the contract works at the site, the assessee claimed depreciation of 20 per cent. and not at 100 per cent. on certain construction raised at t e site. As required by the Income-tax Officer, the assessee furnished better particulars regarding the nature of construction. From the particulars, we find that cement, M. S. rod, G. I. pipes, etc., had also been used in the said construction. The Income-tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot come under item III-D(4) of Appendix-I of the Income-tax Rules, 1962. On the other hand, Mr. A. R. Barthakur submits that the dumper comes under item 111-D(4) of Appendix-I as it has a device for movement of earth. In order to appreciate the submissions made by learned counsel for the parties it is to be seen whether the earthmoving machinery is required to do extra work like cutting/digging any earth. The rule-making authority has specifically mentioned " earthmoving machinery " which is engaged in heavy construction like dam, canals, etc., come under this category. On a close reading of the expression, it will appear that the rule-making authority is absolutely silent regarding additional work to be done, viz., cutting and digg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te grounds are found, either in the history or cause of the enactment or in the context or in the consequences which would result from the literal interpretation, for concluding that interpretation does not give the real intention of the Legislature. In this case item III-D(4) of Appendix-I is very clear. It means " earthmoving machinery which is engaged in heavy construction works, such as dams, tunnels, canals, etc.", and these are entitled to get 30 per cent. depreciation. The rule-making authority has not stated that the earthmoving machinery is required to do something more for movement of earth. Therefore, the earthmoving machinery is not required to do extra work like cutting/digging. Mr. Joshi has drawn our attention to a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mper ", for removal of the contents. In view of the above, we have no hesitation to say that a " dumper " comes within expression " earthmoving machinery " and we hold that the assessee is entitled to get 30 per cent. depreciation. Accordingly, we answer questions Nos. 1, 2 and 3 in the affirmative against the Revenue and in favour of the assessee. So far question No. 4, the Tribunal allowed 20 per cent. depreciation though the facts placed before the Tribunal were that the structures used at construction site were made of cement, M. S. rods, G. I. pipes, etc., over and above wood. It is no doubt, temporary. The temporary constructions come under various categories, viz., 1st class, 2nd class and 3rd class temporary constructions. Mr. Jos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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