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TMI Blog2023 (10) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... d in treating the order of the learned assessing officer as erroneous ignoring the fact that the learned assessing officer has passed order after considering all the facts. 5. The appellant craves leave to add, amend, alter, vary and/or withdraw any or all the above grounds of appeal." 3. At the inception of the hearing, the registry pointed out that the appeal of the assessee is delayed by 44 days for which the assessee has submitted an affidavit. Learned AR of the assessee submitted that since the assessee is working in several mining projects located in remote areas and there are various issues like excess of internet therefore, this note has given the knowledge of the assessee much later. The plea of the assessee was found to be satisfactory looking to the business and nature and work of the assessee. Therefore, the delay was condoned, and the matter was permitted for adjudication. 4. Brief facts of the case culled out of the material on records are that, the assessee is a firm, engaged in the business of mining contract and electronically filed its return of income declaring total income of Rs.7,62,87,530/- on 24.10.2017. Thereafter, the case was selected for scrutiny unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicles are absolutely and exclusively used for the transportation of the coals, or iron ores from production sites to the finished goods stock yard inside the coal/iron ore mines. There is no other use of these vehicles mainly Tippers, dumpers except using exclusively and wholly for the production of various ores and its transaction to the specified locations/finished goods stock yards. It is further submission of the Learned AR that the assessee is charging money on per ton per kilometer / cubic meter basis for transportation purposes. Various vehicles were used in transportation of goods from one place to another and, therefore they were falling in the category of motor versus motor lorries or other motors taxies and were entitled for higher depreciation. Learned AR drew our attention to the MDO contract for production of iron ore at Aridongri iron mines with M/s. Godawari Power and Ispat Ltd., wherein at page 6 of the paper book in para 2, scope of work was defined and certain terms like Loading/Feeding to crusher plant, loading of iron ore for dispatch into trucks directly and also directs upon the points that the over burden from the Quarry/Mines shall have to be dumped sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able court has in para 12 observed as under :- 12. The origin of word 'lorry" is uncertain, Lorry means, (i) 'a large strong motor vehicle for transporting goods, etc." (ii) "a long flat low wagon, or, (ii) a truck used on railways or tramways" as per the Concise Oxford Dictionary. As per Webster's II New River Side University Dictionary, the word 'lorry in the meaning relevant to the present context. would mean, 'a motor truck'. As per the Encyclopaedia Britannica, truck is "also called lorry" Thus, the expression "motor lorries" in Entry III-E(LA) of Appendix I would mean "motor trucks". 121. "Truck" is introduced in following terms in the Encyclopaedia Britannica : "Truck also called LORRY and motor vehicle designed to carry freight or goods or to perform special services such as fire fighting six-horsepower engine. 122. Lorry or truck would, therefore, mean not only any motor vehicle designed to carry freight or goods but also to perform special services like fire-fighting. Fire engine....material. Further, it was also observed 123. It will, thus, be clear that motor vehicles like fire trucks, fork-lift trucks and crane trucks which are designed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mper at 30%. In such facts, it was the finding of ITAT that the assessee has received from contracts which includes various operation including transportation. We observed that to claim higher depreciation, it is required that goods transported must belong to someone else and use of motor vehicles for transportation is a key to claim higher depreciation. After perusal of material on record, we find that assessee is engaged in providing equipment on motor vehicle on hire. After considering the above facts, judicial pronouncements, elaborate findings of the Learned CIT(A), we do not find any reason to interfere in the findings of the Learned CIT(A), therefore the appeal of the Revenue is dismissed. 10. With such arguments, it is the prayer of Learned AR that since the assessee has composite contract with the M/s. Godawari Power and Ispat Ltd., which includes use of heavy vehicles, transportation of goods also which should be considered as hire and therefore additional depreciation within the meaning of provisions of Section 32 of Income-tax Act according to the rate of depreciation under New Appendix1 (effective from 2006-07 onwards) under rule 5, Part-A, III, Machinery and Plant, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the paper book, however, on perusal of placed documents, it could not be emerged that any specific query pertaining to additional depreciation was made by the assessing officer and responded by the assessee, therefore, the contention of the assessee that issue was discussed and a view was formed by Ld AO cannot be construed and subscribed too. Under such circumstances, the Learned PCIT was will within the powers to invoke the provisions of Section 263 of the Act and to assume the jurisdiction to initiate the revisionary assessment proceedings. The main condition for availing of additional depreciation as carved out in the Act is that the motor buses/motor lorries and motor taxis are to be used in a business of running them on hire could not be satisfied by the assessee by way of any supporting documents like any hire charges which were separately paid to the assessee by the contractee company or any condition which may support the contention of the assessee that the heavy vehicles were used in hire by the assessee. Since, the MDO contract was a composite contract for Excavation & loading, Sorting Sizing & Stacking, Hauling, Drilling & Blasting, Loosening, Feeding to fixed screen p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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