The Tax Publishers2005 TaxPub(DT) 0073 (Raj-HC) : (2005) 273 ITR 0421 : (2003) 185 CTR 0280 : (2004) 134 TAXMAN 0124

 

CIT v. Bansiwala Iron & Steel Re-Rolling Mills ()

 

INCOME TAX

--Reference----MIXED QUESTION OF LAW AND FACTDepreciation--Rate--

Catch Note:
On facts, the Tribunal held that the assessee had the income from plying of truck and had an income from hiring along with the other business done by the assessee--The depreciation to the extent of 40 per cent was allowed on the truck trailor--The Tribunal rejected revenue's reference application under section 256(1)--Was justified in doing so--The Tribunal has found as fact that the assessee had sufficient income from hiring of trucks and assessee's own goods were also transported and allowed depreciation at higher rate being 40 per cent--The question being of mixed question of law and facts, no question of law arises.
Ratio:
The Tribunal has found as fact that the assessee had sufficient income from hiring of trucks and assessee's own good was also transported and allowed depreciation at higher rate being 40 per cent--The question being of mixed question of law and facts, no question of law arises.
Held:
Referring to the relevant rules the Tribunal held that they clearly provided that in case the trucks being used for hire, then the depreciation allowable is at the rate of 40 per cent. Thus, on the question of fact whether the truck, in this case the trailor, has been plied on hire or not on the basis of material produced on record the Tribunal recorded a finding of fact that the truck trailor has derived the income and that income, if one goes by the facts, is Rs. 91,078 for five and half months, out of which Rs. 60,000 was earned from hire business and Rs. 30,545 were for the personal goods of the assessee. Here it is not the finding of the Tribunal that the truck was used only for the purpose of carrying the raw material and of the manufactured goods of the assessee. On the other hand, on the basis of the material which has come on record the Tribunal has recorded a finding of fact that the assessee had income from plying of truck. It is not a pure question of law but it is a mixed question of law and fact. As per the case of CIT v. Manjeet Stone Co. (1991) 190 ITR 183 (Raj) also it is not necessary that unless the assessee undertakes the transportation business 40 per cent depreciation cannot be allowed. The insistence and thrust was upon the fact that whether there is any income from hiring of the truck, with the exception that a nominal income may not be taken as income from hiring of the truck. In this case, on the material produced on the record, the finding of fact has been recorded by the Tribunal that the assessee has receipts from hiring of the truck and that, as said earlier, is also substantial, which is not a perverse finding. Taking into consideration the matter from any angle no question of law does arise in the matter for consideration.
Case Law Analysis:
CIT v. Manjeet Stone Co. (1991) 190 ITR 183 (Raj) distinguished.
Application:
Not to currrent assessment year.
Decision:
In favour of assessee.
Date of Judgment:
5 September 2003
Assessment Year:
1982-83

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