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TMI Blog2024 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... or the construction business and certain items which are hiring income. From the direction given by the ld. Pr.CIT, it is seen that the Pr.CIT has emphasized upon the dominant use of the assets to determine the character for claiming higher rate of depreciation. In this regard, in the case of Gupta Global Exim (P) Ltd. [ 2008 (5) TMI 7 - SUPREME COURT ] as held that accrual of income as a determinative factor for coming to the conclusion that trucks were used in the business of running them on hire is not correct. Therefore, we are of the view that the assessee is eligible for higher rate of depreciation on the assets which were used for business of hiring, no matter how much is the quantum of income from such hire business. Therefore, we d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore the. present order is without jurisdiction and liable to be quashed . 5. For that Ld. Pr. CIT erred in exercising jurisdiction u/s 263 of the IT act without examining the assessment record, making or causing to be made any enquiry. Therefore the order passed u/s 263 of the IT Act is non application of mind, hence liable to be quashed. 6. For that Ld. Pr. CIT erred in passing order u/s 263 without proper appreciation of facts available in assessment record. Therefore the order u/s. 263 is perverse and liable to be quashed. 7. For that the assessee craves the leave for any addition, alteration or modification of the grounds either before or at the time of hearing of the appeal. 3. Before us, ld.AR of the assessee contended that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, an amount of Rs. 1,24,99,030/- has been allowed in excess and is to be disallowed and added to the total income of the assessee. 4. Ld. AR argued that the ld.CIT(A) alleged that the assessee s normal income is of contract activity and the hiring income is of only 0.20% of total revenue, therefore, the depreciation allowed @30% is incorrect and excess and the same is to be allowed @15%. Thereafter the ld. Pr.CIT vide impugned order passed u/s. 263 of the Act, has directed the AO to allow the depreciation based on dominant use of these assets. The relevant direction given in para 9 of the ld. Pr.CIT are as under :- 9. The main business of the assessee firm is contract and construction works and not hiring of vehicles. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable for the assets used for hiring income and since all the assets were not used for the hiring, therefore, the order of the AO allowing depreciation @30% on entire block is erroneous as well as prejudicial to the interest of revenue. Therefore, ld. CIT-DR submitted that the order of the ld. Pr.CIT directing the AO to allow the depreciation @15% is correct and the appeal of the assessee deserves to be dismissed. 7. We have heard rival submissions and perused the material available on record. It is seen that the AO has allowed depreciation to the assessee as claimed by it on the block of plant and machinery @30%. During the course of hearing the ld.AR has submitted a chart of such assets containing 36 items on which total depreciation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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