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TMI Blog2017 (9) TMI 1856X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of charges ignoring that a passenger traveling in a bus purchases only right to travel between fixed points as per terms and conditions of the transporter. Hence, the appeals lack the merits and therefore, the order passed by the Ld. CIT(A) is uphold - Appeal filed by the Revenue Department stands dismissed - I.T.A. No.503(Asr)/2016 Assessment Year:2013-14 - - - Dated:- 18-9-2017 - Sh.T.S. Kapoor, Accountant Member And Sh.N.K.Choudhry, Judicial Member Appellant by: Sh. Rahul Dhawan (Ld. DR) Respondent by: Sh. Ashwani Kumar And Sh. Aditya Kumar (Ld. CAs.) ORDER N. K. Choudhry: The Revenue Department has preferred the instant appeal, on feeling aggrieved against the order dated 29.08 2016, passed in appeal No.71-IT/CIT(A)/BTI/16-17, by the Ld. CIT(A), Bathinda for Asst. Year:2013-14. 2. The Revenue Department has raised the following grounds of appeal. 1. The Ld. CIT(A) has erred in holding that there is no difference between hiring out the vehicle for a specified period for a consideration and letting the passenger travel in a vehicle on payment of charges ignoring that a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he depreciation @ 30% to the assessee and deleted the addition occasioned by the withdrawal of 50% of the claim of depreciation in all the three assessment years under consideration. 4. Now, feeling aggrieved against the order passed by the Ld. CIT(A), the Revenue Department preferred the instant appeals which are under consideration and in support of its case the Ld. DR submitted that the Ld. CIT(A) has erred in holding that there is no difference between hiring out the vehicle for a specified period for a consideration and letting the passenger travel in a vehicle on payment of charges ignoring that a passenger travelling in a bus purchases only a right to travel between the fixed points as per terms and conditions of the transporter whereas in case of hiring out a vehicle, one person grants to another the enjoyment of things during a certain time for a stipulated compensation without inference of the owner. Further, the Ld. DR submitted that the Ld. CIT(A) has erred in holding that the assessee was entitled to claim depreciation @ 30% even though the buses were being used for its own business by the assessee and it was entitled to claim deprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch has passed an order in the case of assessee itself, for Asst. Year:2010-11 to 2012-13 which is factually and legally similar and identical to the instant case. The concluding part of the said order is reproduced herein below. We have gone through with the facts and circumstances of the case as it reflects from the assessment order that the Assessing Officer formed his own views That buses are seen to have been used for assessee own business and not for hire. There is no hiring contract or agreement in respect of business between the assessee and any other person, leading to receipts vis-a vis the plying of the same buses on a hiring basis. A contract of hire is defined as one whereby one person grants to another, the enjoyment of a thing or the use of a labour and industry, either of himself or of servant during the certain times for a stipulated compensation. In this situation, once the time period of hire and compensation are stipulated, enjoyment of the thing etc. is left to discretion of person taking the things on hire. In other words, there is no inference by the owner which Judged form this yardstick, the terms and conditions governing a passenger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual or in group gets the public transport for his traveling purposes then certainly may be for shorter period there is an implied contract of hire and simply because the buses stops at different fixed points at the terms and conditions of transporter but still the passengers may be individually or jointly gets the right to travel may be for shorter period and that right of travel, in our considered view certainly amounts to hire as defined under Motor Vehicle Act in Sec. 2(3) and 2(29) of the Motor Vehicle Act,1939. Contract carriage means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract and includes a motor cab notwithstanding that the passengers may pay separate fares. Further Stage Carriage is defined in Sec.2(29) of The M.V. Act as under: Stage carriage means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cab, contract carriage and stage carriage . Further when an assesse run motor buses on several routes and received amounts by way of collection regularly, it clearly tantamount to the business of running buses on hire. It could not be said that unless a single person took an entire bus on hire it would not amount to the business of running buses on hire merely because separate fares happen to be collected from different passengers. The assessee, therefore, was entitled to depreciation at 40% on the buses in question. The Co-ordination Bench of ITAT, Amritsar in the case of M/s Dabwali Transport Co. Ltd. Vs. DCIT (supra) while considering the aforesaid judgments allowed the depreciation to the assessee at the higher level i.e., 30%. In over all consideration of the definition of the Motor Vehicles Act, 1939 as well as perusal of the judgment and submissions of the parties, we do not have any hesitation to hold that Public Transport carries the passenger may be for one stop or more than that may be for smaller which can be limited or even otherwise certainly there is implied contract between passenger and the buses owner for hire and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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