S. GAJINDER SINGH VS COMMISSIONER OF INCOME-TAX, 2000 PTD-GAUHATI-HIGH-COURT-INDIA 1105 (1999)

Income-tax---

----Reference---Question of law---Depreciation---Assessee, owner of trucks, claiming depreciation at 40 percent on ground trucks used in transportation business---ITO allowing depreciation only at 30 percent.---CIT (Appeals) finding that assessee had earned income from running of trucks on hire from army and other private parties---Same reflected in profit and loss account of assessee---Tribunal holding that assessee unable to establish that trucks were hired out to other parties or used in business of transportation of goods on hire---In view of finding of CIT (Appeals), question of law arose for reference---Indian Income Tax Act, 1961, Ss.32 & 256(2).

For the assessment year 1987-88, the assessee claimed depreciation at the rate .f 40 per cent on the trucks owned by him and which had been used. in his transportation business in accordance with the circular of the CBDT as well as the Income-tax Rules. However, the Assessing Officer allowed only 30 per cent depreciation on the trucks. On appeal, the Commissioner of Income-tax (Appeals) accepted the claim of the assessee. On further appeal, the Tribunal held in favour of the Department in view of the fact that the assessee could not establish that the bucks were hired out to other parties or that they were used in his business of transportation of goods on hire. The assessee filed an application under section 256(1) of the Income Tax Act, 1961, for referring a question of law, which was rejected by the Tribunal. On an application filed under section 256(2):

Held, that the Commissioner of Income-tax (Appeals) had found that the assessee had earned a sum of Rs.35,33,591 from the Army for reuniting of trucks on hire and a sum of Rs.4,72,860 from other private parties out of the said business as had been reflected in the profit and loss account of the assessee and that the assessee was using the trucks in the business of running them on hire and, therefore, depreciation at the rate of 40 percent. had to be allowed. In view of the finding of the Commissioner (Appeals), the question, whether the trucks were public carrier vehicles and whether the assessee was entitled to 40 percent. depreciation on the trucks arose for reference.

R. K. Joshi with Mrs. U. Chakraborti for the Assessee.

Bhuyan for the Commissioner.

JUDGMENT

This is an application under section 256(2) of the Income Tax Act, 1961, with a prayer to call for a statement of the case on some questions of law which arise out of the order, dated October 27, 1997, of the Income-tax Appellate Tribunal, Guwahati Bench, Guwahati, in I. T. A. No. 227 (Gauhati) of 1990.

The facts briefly are that for the assessment year 1987-88, the petitioner filed his return and was assessed to tax by an assessment order. In course of the said assessment, the petitioner claimed a depreciation at the rate of 40 per cent on the trucks owned by him. The petitioner's case was that since the trucks had been used by the petitioner in transportation business, he was entitled to 40 percent. depreciation on the trucks as per the circular of the Central Board of Direct Taxes as well as the Income-tax Rules. But the said case of the petitioner was turned down by the Assessing officer in the assessment order and instead, depreciation at 30 percent. was allowed on the trucks of the petitioner. Against the said assessment order, the petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), Gauhati, who, in his order dated January 10, 1990, allowed 40 percent. depreciation. Against the said order of the Commissioner of Income-tax (Appeals) Gauhati the Department preferred an appeal numbered as F. T. A. No.227 (Gauhati) of 1990, before the Income-tax . Appellate Tribunal, Gauhati Bench, Guwahati. By an order dated September 15, 1993, the said Appellate Tribunal allowed the appeal of the Department holding, inter alia, that the circular of the Central Board of Direct Taxes on which reliance was placed by the assessee was of no help in view of the fact that the assessee could not establish that the trucks were hired out to other parties or they were used in his business of transportation of goods on hire. Aggrieved, the petitioner filed an application under section 256(1) of the Income Tax Act, 1961, before the Income-tax Appellate Tribunal/Gauhati Bench, Guwahati, numbered as R.A. 60 (Gauhati) of 1993 with a prayer to refer the following two questions arose out of the said appellate order of the Tribunal:

"(1) Whether, on the facts on record, that is the trucks are public carrier vehicles; that there are carriage receipts from others in the profit and loss account and not only from Army Authorities; that the C.B.D.T.'s circular also on record has clarified the position, is not the decision of the Tribunal perverse?

(2) Whether, on the facts and in the circumstances of the case, the assessee is entitled to depreciation at 40 percent. instead of 30 percent.?"

But the Income-tax Appellate Tribunal, Gauhati Bench, by order dated October 27, 1997, rejected the said application of the petitioner after noting its findings in its appellate order that the assessee could not establish that the trucks were hired out to other parties or they were used in his business of transportation of goods on hire.

Mr. R. K. Joshi, learned counsel appearing for the petitioner ?assessee, submitted that the ground given by the Tribunal for rejecting the prayer of the petitioner is factually not correct as the petitioner-assessee had in fact established before the authorities that the trucks of the petitioner were in fact used for transportation business. In support of his submission, Mr. Joshi relied on the relevant paragraphs of the order, dated January 10, 1990, of the Commissioner of Income-tax (Appeals) as well as the appellate order, dated September 15, 1993, of the Appellate. Tribunal. Mr. Bhuyan appearing for the Department, on the other hand, submitted that the question as to whether the petitioner had in fact used the trucks in the business of transportation of goods on hire was a factual question and the petitioner having failed to establish the said factual question, was not entitled to a reference under section 256 of the Income Tax Act, 1961, as such reference is confined to questions of law.

We have perused the order, dated January 10, 1990, of the Commissioner of Income-tax (Appeals), Gauhati, a copy of which has been annexed to this petition as Annexure III. In the last paragraph of the said order of the Commissioner of Income-tax (Appeals), Guwahati, it appears that the Commissioner has taken into consideration the fact that the petitioner had earned0a sum of Rs.35,33,591 from the Army, for running of trucks on hire and a sum of Rs.4,72,860 from other private parties out of the said business as has been reflected in the profit and loss account of the petitioner, and other facts that have been stated in the said paragraph and has held that the petitioner was using the trucks in a business of running them on hire and, therefore, depreciation at the rate of 40 percent. was to be allowed. In view of the said findings as recorded by the Commissioner of Income-tax (Appeals) in his order, dated January 10, 1990, which was the subject-matter of appeal before the Income-tax Appellate, Tribunal, Gauhati Bench, Guwahati, in I. T. A. No. 227 (Gauhati) 1990, we are of the opinion that the rejection of the prayer of the petitioner for reference of the aforesaid two questions was not justified and that this is a fit case in which this Court should call for a- statement of the case from the said Tribunal on the aforesaid two questions of law.

In the result, the Income-tax Appellate Tribunal, Gauhati Bench, Guwahati, is directed to draw up a statement of the case, after giving due opportunity to the parties and send the statement of case on the two questions of law, quoted above to this Court as early as possible. .

This application under section 256(2) of the Income Tax Act, 1961, stands disposed of. .

M.B.A./3362/FC???????????????????????????????????????????????????????????????????????????????? Order accordingly.