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TMI Blog1992 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case and in law, the Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) who allowed depreciation on truck at the rate of 40 per cent. as against 30 per cent. allowed by the Income-tax Officer?" The assessee is an individual carrying on business in explosives. He claimed depreciation at the rate of 40 per cent. in respect of his vehicles. The Income-tax Officer allowed depreciation only at the rate of 30 per cent., as according to the Income-tax Officer, the vehicles were used in his own business and he was not carrying on the business of transportation. An appeal was filed by the assessee which was allowed by the Commissioner who held that depreciation should have been allowed at the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be held that depreciation on truck is permissible only at the rate of 30 per cent. as allowed by the Income-tax Officer. As against this, Shri Ranka, counsel for the assessee, has submitted that the facts of this case are not disputed and it has been clearly held that the vehicle is also being hired by the assessee. It is submitted that in these circumstances the assessee is entitled to depreciation at the rate of 40 per cent. Reliance has been placed on Karnani Properties Ltd. v. CIT [1971] 82 ITR 547 (SC) and Aluminium Corporation of India Ltd. v. CIT [1972] 86 ITR 11 (SC). It is submitted that there is no question of law involved so that the references should be answered. Whether the assessee is carrying on the business of transporta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii)D(9) and III(ii)E(1A) given in Part I of Appendix I, appended to the Rules, shows that if the motor buses, motor lorries and motor taxis are used in the business of running them on hire, then those motor vehicles are covered under entry No. III(ii)E(1A) of Appendix I and are entitled to depreciation at 40 per cent. and the motor buses and motor lorries other than those used in the business of running them on hire are entitled to depreciation at 30 per cent. It is true that the relevant clause does not lay down the requirement of hiring wholly or exclusively, but the entry has maintained the distinction about the entitlement to depreciation at 40 per cent. and 30 per cent. In the case of motor buses and motor lorries other than those use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le has been used for purposes of transportation business on hire by others rather than using the vehicle only for the business of the company. Thus, it has to be seen in the facts and circumstances of each case whether the Tribunal has considered the facts and circumstances of the case according to the evidence available on record. When the question referred to the High Court or sought to be referred to the High Court speaks of, "on the facts and in the circumstances of the case", it means on the facts and circumstances found by the Tribunal and not the facts and circumstances as may be found by the High Court on a reappraisal of the evidence. Their Lordships of the Supreme Court in Karnani Properties Ltd. v. CIT [1971] 82 ITR 547 held as u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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