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TMI Blog2020 (2) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... for excavation of over burden (earth) and minerals and transporting the same to the specified place and also transportation of minerals from mines to power plants, transportation of ash from power plant to outside the plant. During the F.Y. 2010-11 relevant to A.Y. 2011-12, the appellant has also used tippers for transportation of over burden minerals and ash for Gujarat Industries Power Ltd., South West Mining Ltd., KSK Mineral Resource Pvt. Ltd. & VS Lignite Power Pvt. Ltd. etc. The assessee has claimed higher rate of depreciation on dumper at 30% to the tune of Rs. 2,02,01,944/-. The Ld. AO by and under an order sheet dated 23.12.2013 asked the assessee as to why depreciation should not be allowed at 15% as against 30% claimed. By and under a reply dated 14.02.2014 the assessee submitted their reasons for admissibility of higher rate of depreciation at 30% on dumper. It is relevant to mention that the assessee also cited certain case laws including the order passed by the Hon'ble Tribunal of Bombay in the case of CIT vs. S.C. Thakur & Co. and Bros (2010)322ITR 463 (Bombay) in support of his case where the order passed by the Ld. Tribunal allowing higher rate of depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appearing at Page 59 of the order passed by the Ld. CIT(A). Apart from that he has further relied upon the judgment dated 29.08.2017 passed by the Co-ordinate Bench passed in the matter of DCIT vs. M/s. National Construction Co., DCIT vs. M/s. P.C. Patel & Co. and ACIT vs. M/s. Gaurav Contracts Co. and DCIT vs. M/s. Durga Construction Co. More so, it was submitted by the Ld. AR that the said judgment passed by the Co-ordinate Bench has been upheld by the Hon'ble Jurisdictional High Court in Tax Appeal No. 414 to 425 of 2018. He, therefore, relies upon the order passed by the Ld. CIT(A) in allowing the entire 30% depreciation on the vehicle/dumper as claimed. On the other hand, the Ld. DR relied upon the order passed by the Ld. AO. 4. We have heard the rival submissions made by parties, we have also carefully considered the relevant materials available on record including the judgment passed by the Co-ordinate Bench and the judgment passed by the Hon'ble Jurisdictional High Court as well. It appears that the Ld. CIT(A) while dealing with the issue relied upon the order passed by the Ld. CIT(A) in the matter of M/s. P.C. Patel & Co. for the A.Y. 2012-13 wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. SECL /GM /RGH/ Dy.GM/WO/93 / 09/1006 dated 31.8.2008 for Hiring of HEMM for excavation of OB, loading in to tippers, transportation, unloading the excavated material etc. (Awarded by South Eastern Coalfields Limited, Raigarh area, CG. (Copy of Work order attached) We further observe that copies of tenders inviting bid furnished in the paper books during the course of appellate proceeds contain the objectives for which they were invited for as under :- "Tender for hiring of Crawler mounded shovels/Hydraulic Excavators, Backhoes, Dumpers for removal of Overburden." 'Tender No.12/2008- 2009 Hiring of equipments such as HEMM, tippers, Drills, Dozors, Grader etc. for all kind of strata excavator and Hiring of above referred equipments for excavation and transportation of coal -Awarded by Western Coalfields ltd. ", "Tender No.1412009-JO dated 24.6.2009 Hiring of equipments such as HEMM, tippers, Drills, Dozors, Grader etc. for removal of all kind of strata excavation and transportation-Awarded by western Coal Fields Ltd. " We have noticed that the tenders invited for hiring of equipments relate to the following kind of work :- i) Excavation of over burden; ii) Transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth Moving machineries are though registered as Motor Lorries in Motor vehicles Act, same are not road transport vehicles is applicable to JCB only and cannot be stretched to its applicability to dumpers, tippers etc motor vehicles. The referred case law is completely distinguishable in respect of fact, circumstances and subject matter of the case. We find that the Punjab and Haryana High Court in the case of CIT-III Vs Rakesh Jain 20 taxmann.com 404 has held that tippers, vibrator and vibrator soil compactor are commercial vehicle. In this case it was also stated whether Tippers, Vibrator and Vibrator Soil Compactor would be covered by the expression 'commercial vehicle' or such vehicles have to be regarded as plant and machinery to attract less percentage of depreciation. It was stated that the reasoning adopted by the Tribunal would not suffer from any legal infirmity because the Tippers are registered under the Motor Vehicles Act, 1988 (for brevity 'the 1988 Act') as road transport vehicle as would be vibrator and vibrator soil cornpactor. Gujarat High Court had held in Commissioner v. Shiv Constructions (1987) 165 ITR 159Guj.) that dumpers were road transport v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on hire. After considering the above facts, judicial pronouncements, elaborate findings of the Ld. CIT(A) we do not find any reason to interfere in the findings of the Ld. CIT(A). Therefore, the appeal of the revenue is dismissed." We have further carefully considered the judgment passed by the Jurisdictional High Court whereby and whereunder the order passed by the Ld. Tribunal in upholding the 30% depreciation as claimed has been confirmed. Thus, respectfully relying upon the same in the absence of any changed circumstances in the matter we find no infirmity in the order passed by the Ld. CIT(A). Hence, the ground of appeal preferred by the Revenue is found to be devoid of any merit and thus dismissed. ITA No. 205/Rjt/2016 (A.Y. 2012-13):- 5. The sole ground relating to the higher rate of depreciation at 30% on dumpers as claimed by the assessee is identical to that of the issue as decided in ITA No. 110/Rjt/2016 for A.Y. 2011-12 and in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, this ground of appeal preferred by the Revenue is dismissed. ITA No. 237/Rjt/2016 (A.Y. 2013-14):- 6. The first ground is relates to the higher rate o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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