9911796707
TMI Blog2021 (12) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Income Tax, Circle-1, Kottayam/Revenue is the respondent. The assessee being aggrieved by the order in ITA No.545/Coch/2015 dated 17.11.2017 of the Income Tax Appellate Tribunal (for short 'the Tribunal') Cochin Bench has filed the subject appeal under Section 260A of the Income Tax Act, 1961 (for short 'the Act'). 2.1 The appeal has been admitted on the following substantial questions of law: "i. In the facts and circumstances of the case, ought not the Tribunal have held that the appellant is entitled for additional depreciation as he was hiring buses? ii. In the facts and circumstances of the case, ought not the Tribunal have held that the ratio of the judgment in ITA. No.130 of 2012 squarely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the ld. Authorised Representative, the assessee concerned was in hotel business and they were also carrying on a business of running cars on hire for tourists who stayed in their hotel. In our opinion, this case will not help the assessee since it was not engaged in any business. What was held by Hon'ble Apex Court in the case of Gupta Global Exim P. Ltd (supra) is very relevant and they is reproduced hereunder: "Under item 2(ii) of heading III, the higher rate of depreciation is admissible on motor trucks used in a business of running them on hire. Therefore, the user of the same in the business of the assessee of transportation is the test..... In our view, the entire approach of the Commissioner of Income tax (Appeals) was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany, Judgment dated 07.11.2017 in ITA 130/2012, and contends that the assessee since is subjected to business income as well, the assessee is automatically entitled to claim additional depreciation. The rejection of additional depreciation by the Tribunal and the authorities is illegal and liable to be set aside. 4. Senior Advocate Mr P K R Menon argues that the claim of additional depreciation is both a mixed question of fact and law. The entitlement to additional depreciation by an assessee is dependent upon the nature of activity carried on by the assessee and the purpose for which the vehicles are used by the assessee. The judgments relied on by the appellant are clearly distinguishable to the fact situation of the case. He invites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of running the trucks for hire." (emphasis supplied) 4.1 He placed reliance on the consideration by the Apex Court by laying much emphasis on the following sentences 'therefore, the user of the same in the business of the assessee of transportation was the test . Merely because the income from the letting of the trucks on hire was included in the business income the higher rate would not apply'. (emphasis supplied) He concludes by arguing that the assessee is subjected to business income does not mean that the assessee is automatically entitled to additional depreciation as well. 5. The only argument canvassed is that the receipts received by the assessee in this behalf are included in the business income and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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