M/s. FIS Logistics Private Ltd., Kolkata V. ACIT, Circle - 5, Kolkata, Kolkata

ITA 343/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3140 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 16-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-03-2011
• Court: TRIBUNAL
• Department Lawyers: SHRIK K TRIPATHI
• Assessee Lawyers: SUJAY SEN; S JHAJHORIA
• Keywords: Depreciation; Additional depreciation
• Section: 143(3); 2(14); 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO. 343 / KOL / 2011 ASSESSMENT YEAR :2005-06 M/S FIS LOGISTICS PRIVATE LTD. C/O SALARPURIA JAJODIA & CO., 7, C.R. AVENUE, KOLKATA 700 072 [ PAN NO.AAACF 7756 P ] V/S . A.C.I.T., CIRCLE-5, P-7, CHOWHRINGHEE SQUQRE, KOLKATA 700 069 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S. JHAJHORIA AR & SHRI SUJAY SEN, AR /BY RESPONDENT SHRIK.K. TRIPATHI, SR- DR /DATE OF HEARING 13-06-2013 /DATE OF PRONOUNCEMENT 11-07-2013 / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME- TAX (APPEALS)-VI, KOLKATA (CIT(A) FOR SHORT) IN A PPEAL NO. 929/CIT(A)-VI/09- 10/CIR-5/KOL DATED 2-12-2010. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-5, KOLKATA U/S. 147/143(1) OF THE INCOME-TAX ACT, 1961(HEREINA FTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 18-11-2009 FOR ASSESSMENT YEAR (AY) 2005-06. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF ASSESSING OFFICER (AO) IN RESTRICTING THE DEPRECIATION AT 25% AS AGAINST 40% CLAIMED BY THE ASSESSEE ON THE A SSET REACH STACKER WHICH ITA NO.343/KOL/2011 A.Y. 2005-06 M/S FIS LOGISTICS P. LTD. V. ACIT CIR-5, KOL PAGE 2 FALLS UNDER THE HEAD MOTOR LORRIES AS ENVISAGED IN ENTRY III E (1A) OF PART-I OF APPENDIX-I. FOR THIS, ASSESSEE HAS RAISED FOLLOWIN G GROUND NO.2:- 2. THAT ON THE FACTS AND ON THE CIRCUMSTANCES OF T HE CASE THE CIT(A) HAD GROSSLY ERRED IN NOT HOLDING / APPRECIATING THE FAC T THAT REACH STACKER WHICH IS A SOPHISTICATED MOBILE CRANE USED BY THE A PPELLANT FOR THE PURPOSE OF ITS BUSINESS OF CARGO LIFTING, HANDLING AND MOVI NG, ON HIRE, AND REGISTERED AS A HEAVY MOTOR VEHICLE, CLEARLY FALLS WITHIN THE SCOPE AND AMBIT OF THE EXPRESSION MOTOR LORRIES AS ENVISAGED IN ENTRY II I E (1A) OF PART-I OF APPENDIX-I AND THUS IS ENTITLED TO DEPRECIATION OF 40% INSTEAD OF 25% AS ALLOWED BY THE AO. SUCH ACTION OF THE CIT(A) IN UPH OLDING / CONFIRMING THE AOS ACTION IN RESTRICTING THE DEPRECIATION TO 25% ONLY, INSTEAD OF 40% AS CLAIMED BY THE APPELLANT, IS BAD IN LAW, ILLEGAL AN D AB INITIO VOID AND IS SUBJECTED TO BE CANCELLED / QUASHED / SET ASIDE. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS ENGAGE D IN THE BUSINESS OF CARGO LIFTING (THAT MEANS, LOADING THE CONTAINER FROM THE GODOWN OF THE PORT AND UNLOADING THE SAME IN THE SHIP OR VICE-VERSA).THE A SSESSEE IS HAVING ONE ASSET REACH STACKERS, WHICH HAVE THE ROAD PERMIT UNDER TH E AREA MOTOR VEHICLES ACT, 1988 AND THE VEHICLE IS USED FOR CARRYING OF G OODS IN THE PORT AREA. THE ASSESSEE CLAIMED DEPRECIATION ON THE REACH STACKER @ 40% BUT ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS RESTRICTED THE DEPRECIATION AT 25%. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CI T(A), WHO CONFIRMED THE ACTION OF AO BY OBSERVING IN PARA-4 OF HIS ORDER, W HICH REPRODUCED AS UNDER:- 4. I HAVE CAREFULLY CONSIDERED THE ABOVE SUBMISSIO NS OF LD. AR. FIRST OF ALL LET US SEE THE TYPE OF ASSETS ON WHICH DEPRECIATION IS ALLOWABLE @ 40% FOR A.YR. 2005-06. AS PER APPENDIX 1A READ WITH RULE 5( 1A) OF I.T. RULES, FOR A.YR. 2005-06 DEPRECIATION @ 40% WAS ALLOWABLE FOR THE FOLLOWING ASSETS: MOTOR BUSES, MOTOR LORRIES AND MOTOR TAXIS USED I N A BUSINESS OF RUNNING THEM ON HIRE. HERE, THE REACH STACKER USED BY THE ASSESSEE IS N EITHER MOTOR BUS NOR MOTOR TAXI. LD. AR HAS CLAIMED THAT IT SHOULD BE TR EATED AS A MOTOR LORRY. IN THIS RESPECT I WOULD LIKE TO POINT OUT THAT AS PER THE REGISTRATION CERTIFICATE OF RTO PRODUCED BY LD. AR THIS REACH STACKER HAS BEEN REGISTERED AS H.G.V. NON TRANSPORT AND ITS TYPE HAS BEEN SHOWN AS A MOBILE CRANE. THESE FACTS CLEARLY SHOW THAT THIS MACHINER Y REACH STACKER HAS NOT BEEN APPROVED BY THE TRANSPORT DEPARTMENT ITSELF AS A TRANSPORT VEHICLE. WHEN SOME VEHICLE IS NOT A TRANSPORT VEHICLE IT WIL L BE EXTREMELY FAR FETCHED TO TRY AND BRING IT UNDER THE CATEGORY OF A MOTOR LORRY. WHENEVER WE USE ITA NO.343/KOL/2011 A.Y. 2005-06 M/S FIS LOGISTICS P. LTD. V. ACIT CIR-5, KOL PAGE 3 THE TERM MOTOR LORRY IT MEANS A VEHICLE WHICH IS USED TO TRANSPORT FREIGHT OR GOODS FROM ONE PLACE TO ANOTHER. BUT HERE THE MACHI NE REACH STACKER IS MERELY A MOBILE CRANE WHICH IS USED TO SHIFT CONTAI NERS AND OTHER HEAVY ARTICLES FROM ONE PLACE TO ANOTHER WITHIN PORT OR D OCK AREA. EVEN IN THE BROCHER FOR THIS MACHINE SUBMITTED BY LD. AR IT IS MENTIONED AS FOLLOWS: REACH STACLER LOADED CONTAINER HANDLER FURTHER, IN THIS BROCHER ITSELF IT IS MENTIONED THA T THE SPEED OF THIS MACHINE CANNOT BE MORE THAN 25 KMPH. THESE THINGS CLEARLY S HOW THAT THIS REACH STACKER IS BASICALLY A MOBILE CRANE WHICH IS USED FOR HANDLING LOADED CONTAINERS IN CARGO HANDLING FACILITIES AND IS NO T A VEHICLE FOR CARRYING GOODS FROM ONE PLACE TO ANOTHER AS IS DONE BY MOTOR LORRIES. THE TRANSPORT DEPARTMENT HAS ITSELF SAID THAT IT WAS A NON TRANSP ORT VEHICLE. HENCE THIS REACH STOCKER CANNOT BE EQUATED WITH A MOTOR LOR RY AS PROVIDED IN THE DEPRECIATION CHART. AS REGARDS THE CASE OF GUJCO CARRIERS (SUPRA) RELIE D ON BY LD. AR I FEEL THAT FROM THE CONTENTS OF THE DECISION IT APPEARS THAT I N THAT CASE THE VEHICLE UNDER CONSIDERATION WAS A TRANSPORT VEHICLE (REGIST ERED AS A HEAVY MOTOR VEHICLE) ON WHICH A CRANE HAD BEEN MOUNTED. SINCE S UCH VEHICLE HAD BEEN REGISTERED AS A TRANSPORT VEHICLE HON. COURT MAY9 H AVE ACCEPTED IT AS A MOTOR LORRY THOUGH A CRANE WAS MOUNTED ON IT. BUT I N THIS CASE REACH STACKER IS NOT A TRANSPORT VEHICLE AT ALL HENCE TH E QUESTION OF TREAT IN THIS AS A MOTOR LORRY DOES NOT ARISE. HOWEVER, AS AGAINST T HIS CASE IN THE CASE OF SHRIRAM TRANSPORT FINANCE CO. LTD . 254 ITR 558, HON. MADRAS HIGH COURT HAS HELD THAT A MOBILE CRANE COULD NOT BE CAL LED A ROAD TRANSPORT VEHICLE. IN THIS DECISION HON. HIGH COURT OBSERVED AS FOLLOWS: THE PURPOSE FOR WHICH THE CRANES ARE USED IS ALTOG ETHER DIFFERENT FROM THE PURPOSE FOR WHICH A ROAD TRANSPORT VEHICLE IS SUED. FACT THAT THE CRANE IS CAPABLE OF LIFTING WEIGHTS A ND CARRYING THEM OVER A DISTANCE AS ALSO THE FACT THAT THE CRANE IS CAPABLE OF MOTION, BEING MOUNTED ON WHEELS, DOES NOT TAKE WAY ITS ESSE NTIAL CHARACTER OF BEING A MACHINERY USED IN MINING. THE CRANE WAS USED IN THE QUARRY, AND NOT ON PUBLIC ROADS, FOR MOVING THE GRANITE MOBILE CRANE USED IN QUARRYING O PERATION WAS NOT A ROAD TRANSPORT VEHICLE BUT AN ITEM OF MACHINERY A ND WAS ENTITLED TO ADDITIONAL DEPRECIATION. IN VIEW OF THE ABOVE DISCUSSION I HOLD THAT REACH STACKER USED BY THE ASSESSEE IN ITS BUSINESS OF CARGO HANDLING IS A MAC HINERY ON WHICH DEPRECIATION IS ALLOWABLE AT THE RATE OF 25% AND NO T 40%. THEREFORE, I CONFIRM THE DISALLOWANCE OF DEPRECIATION OF RS.39,2 8,138/- MADE BY THE AO. AGGRIEVED, ASSESSEE CAME IN SECOND APPEAL BEFORE US . ITA NO.343/KOL/2011 A.Y. 2005-06 M/S FIS LOGISTICS P. LTD. V. ACIT CIR-5, KOL PAGE 4 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED FROM THE SCHEDULE OF DEPRECIATI ON THAT THE ASSESSEE HAS CLAIMED DEPRECIATION ON REACH STACKER AT 40%. ACC ORDING TO AO, REACH STACKER DOES NOT FALL IN THE CATEGORY OF HEAVY MOT OR VEHICLE AND RATE OF DEPRECIATION SHOULD HAVE BEEN AT 25% INSTEAD OF 40% CLAIMED BY THE ASSESSEE. THE CIT(A) ALSO CONFIRMED THE ACTION OF AO. WE FIND THAT THE NATURE OF VEHICLE MENTIONED IN REGISTRATION CERTIFICATE ISSUED BY REG IONAL TRANSPORT OFFICER, KOHIMA, NAGALAND IS THAT OF NON TRANSPORT MOBILE CRANE. THI S CERTIFICATE IS ENCLOSED IN ASSESSEES PAPER BOOK AT PAGE-44. FURTHER, AS PER T HE COPY OF INVOICE OF TIL LTD., WHICH IS ENCLOSED IN ASSESSEES PAPER BOOK AT PAGE- 48.THE DESCRIPTION OF VEHICLE IS AS UNDER:- 1(ONE) NO. REACHSTAKER (CONTAINER HANDLER) MODEL R SL-45, CAPACITY 4ST, 4 HIGH IN 1 ST ROW, 2ST, 4 HIGH IN 2 ND ROW AND 12T, 3HIGH IN 3 RD ROW, COMPLETE IN ALL RESPECTS MACHINE SRL. NO. 34052 5. LD. COUNSEL FOR THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION TO THE CERTIFICATE OF CRL DOCK PERMIT, WHEREIN THIS VEHICLE WAS TAKEN ON HIRE TO PROVE THAT THE ASSESSEE IS GIVING THIS VEHICLE ON HIRE BASIS. THE RELEVANT DOCUMENT IS ENCLOSED AT ASSESSEES PAPER BOOK PAGE-51. LD. COUNSEL FOR THE ASSESSEE ALSO DREW OUR ATTENTION TO THE DEFINITION OF HEAVY GOODS VEHICLE AS PER SECTION-2 OF MOTOR VEHICLE ACT, 1988, WHICH IS AS UNDER:- (16) HEAVY GOODS VEHICLE MEANS ANY GOODS CARRIAG E THE GROSS VEHICLE WEIGHT OF WHICH, OR A TRACTOR OR A ROAD-ROLLER THE UNLADEN WEIGHT OF EITHER OF WHICH, EXCEEDS 12,000 KILOGRAMS; 6. EVEN UNLADEN WEIGHT MENTIONED IN THE CERTIFICATE OF REGISTRATION IN THIS VEHICLE 45,000 KGS. LD. COUNSEL FOR THE ASSESSEE AL SO DREW OUR ATTENTION TO THE OBSERVATIONS MADE IN ASSESSMENT ORDER FOR AY 2007-0 8 AND ON THE SAME VEHICLE THE ASSESSING OFFICER HAS ALLOWED THE DEPRECIATION @ 40% VIDE ORDER U/S. 143(3) OF THE ACT DATED 15-12-2009. WE FIND FROM THE INCOM E AND EXPENDITURE ACCOUNT THAT ASSESSEES ONLY INCOME IS THAT FROM HIRING OF THIS REACH STAKER I.E., CRANE. ITA NO.343/KOL/2011 A.Y. 2005-06 M/S FIS LOGISTICS P. LTD. V. ACIT CIR-5, KOL PAGE 5 WE ARE OF THE VIEW THAT THIS CRANE IS A HEAVY GOODS VEHICLE FALLING UNDER ENTRY IN OLD APPENDIX I (APPLICABLE FOR AYS 2003-04 TO 2005- 06) UNDER THE HEADING III MACHINERY AND PLANT (3) (II), WHICH IS ON THE BASIS OF DEFINITION GIVEN IN MOTOR VEHICLE ACT, 1988. IN THIS TABLE OF RATES AT WHICH DEPRECIATION IS ADMISSIBLE IS PRESCRIBED ON THIS MOTOR LORRIES @ 40%. FROM THE F ACTS IN ENTIRETY, WE ARE OF THE VIEW THAT REACH STACKER WHICH IS A SOPHISTICATED MOBILE CRANE MANUFACTURED BY T I L LIMITED WITH A BRAND NAME RSL 45 IS NOTHING B UT MOTOR CAR ALSO CALLED MOTOR LORRIES UNDER THE HEAVY GOODS VEHICLE. HEAVY GOOD S VEHICLE AS PER SECTION 2 OF THE MOTOR VEHICLE ACT, 1988 MEANS ANY GOODS CARR IAGE THE GROSS WEIGHT OF WHICH, OR A TRACTOR OR A ROAD ROLLER THE UNLADEN WE IGHT OF EITHER OF WHICH, EXCEEDS 12000 KILOGRAMS. CERTIFICATE OF REGISTRATION ISSUED BY REGIONAL TRANSPORT OFFICER, KOHIMA, NAGALAND AS MOBILE CRANE HAVING VEHICLE NO. NL 01 G 1810 PROVES THAT REACH STACKER IS A MOBILE CRANE UNDER THE HEAVY G OODS VEHICLE. NATURE AND UTILITY OF THE REACH STACKER WILL CLEAR THE TYPE OF VEHICLE AND HELP US TO COME TO THE CONCLUSION THAT REACH STACKER IS NOTHING BUT A INDUSTRIAL MOTOR CAR AND/OR INDUSTRIAL MOTOR LORRIES. IT IS A SPECIAL TYPE OF INDUSTRIAL TRUCK WHICH PROVIDES SPECIAL SERVICES OF LIFTING LOAD, MOVING IT SIDE BY SIDE, -ROTATING IT OR MOVING IT HORIZONTALLY. MOST INDUSTRIAL TRUCKS PERMIT MECHAN IZED PICK UP AND DEPOSIT OF THE LOADS, ELIMINATING MANUAL WORK IN LIFTING AS WELL A S TRANSPORTING. IT WILL THUS, BE CLEAR THAT MOTOR VEHICLES LIKE FIRE TRUCKS, FORK L IFTS TRUCKS, CRANE TRUCKS AND REACH STACKER WHICH ARE DESIGNED FOR SPECIAL SERVICES FAL L WITHIN THE CATEGORY OF MOTOR TRUCKS (ALSO CALLED MOTOR LORRIES. EVEN REVENUE IN FUTURE ASSESSMENT YEARS HAS ALLOWED THE CLAIM OF THE ASSESSEE. 7. ONCE FALL UNDER THIS CATEGORY, THE ASSESSEE IS E NTITLED THE DEPRECIATION @ 40% AND THIS VIEW IS SUPPORTED BY HONBLE HIGH COUR T OF GUJARAT IN THE CASE OF GUJCO CARRIERS V. CIT (2002)256 ITR50(GUJ), WHEREIN IT IS HELD AS UNDER: 14. THUS, A MOBILE CRANE MOUNTED ON A TRUCK CONSTI TUTES A SINGLE UNIT KNOWN AS A TRUCK CRANE WHICH IS ADAPTED FOR USE UPON ROADS F OR SPECIAL SERVICES. THE TRUCK ON WHICH THE CRANE IS MOUNTED IS CONSTRUCTED AND AD APTED SPECIALLY TO CARRY THE CRANE. 14.1 GOODS CARRIAGE AS DEFINED IN SECTION 2(14) O F THE MOTOR VEHICLES ACT, 1988, MEANS ANY MOTOR VEHICLE CONSTRUCTED OR ADAPTE D FOR USE SOLELY FOR THE ITA NO.343/KOL/2011 A.Y. 2005-06 M/S FIS LOGISTICS P. LTD. V. ACIT CIR-5, KOL PAGE 6 CARRIAGE OF GOODS, OR ANY MOTOR VEHICLE NOT SO CONS TRUCTED OR ADAPTED WHEN USED FOR THE CARRIAGE OF GOODS. THIS DEFINITION IS NOT CONFINED ONLY TO CARRIAGE OF FREIGHT WHICH IS NARROWER THAN THE EXPRESSION C ARRIAGE OF GOODS. IN THE INSTANT CASE, THE TRUCK IS ADAPTED FOR USE SOLELY F OR CARRIAGE OF THE CRANE MOUNTED ON IT. THE MOUNTED CRANE IS ATTACHED TO THE TRUCK WHICH CARRIES IT. THE TEST OF CARRYING GOODS SUCH AS POTATOES AND TOM ATOES THAT REQUIRE LOADING AND UNLOADING IN THE CONTEXT OF CARRIAGE OF FREIGHT WHEN TRANSPORTED, AS WAS SUGGESTED ON BEHALF OF THE REVENUE, WILL NOT BE DEC ISIVE. UNLOADING, IN THE CONTEXT OF TRUCK CRANE WHERE THE CRANE REMAINS MOUN TED AND ATTACHED TO THE TRUCK WHEN CARRIED AND EVEN AT THE DESTINATION WHER E IT IS PUT TO USE IS NOT A RELEVANT FACTOR AT ALL. THOUGH NOT REQUIRED TO BE L OADED OR UNLOADED LIKE OTHER GOODS TRANSPORTED IN CARRIAGE OF FREIGHT, THE CRANE REMAINS FIXED, MOUNTED ON THE TRUCK WHICH HAS BEEN ADAPTED FOR USE SOLELY FOR ITS CARRIAGE AND SUCH TRUCK CRANE IS USED FOR SPECIAL SERVICE OF LIFTING AND MO VING HEAVY OBJECTS. THIS IS WHY SUCH A MOBILE CRANE IS REGISTERED AS A HEAVY MO TOR VEHICLE WHICH IS A HEAVY GOODS VEHICLE AS DEFINED IN SECTION 2(16) OF THE MOTOR VEHICLES ACT. 15. THE APPROACH OF THE TRIBUNAL AND THE AUTHORITIE S BELOW IT THAT CRANES ARE NOT MENTIONED SPECIFICALLY AS AN INDEPENDENT ITEM F ALLING IN THE CATEGORIES FOR WHICH HIGHER DEPRECIATION ALLOWANCE AT THE RATE OF 40 PER CENT. WHEN USED FOR HIRE AND AT 30 PER CENT. WHEN NOT SO USED HAS BEEN PROVIDED AS AGAINST 10 PER CENT. OF MACHINERY IN GENERAL, AND THEREFORE, THEY SHOULD BE TREATED AS FALLING IN THE GENERAL CATEGORY OF MACHINERY, IS AN OVER-SI MPLIFICATION OF THE MATTER. THE APPROACH OF THE TRIBUNAL THAT THE PLEA TAKEN BY THE ASSESSEE THAT CRANE WAS AN INTEGRAL PART OF THE MOTOR VEHICLE ON WHICH IT IS MOUNTED REQUIRED ASCERTAINMENT OF FACTS AND FRESH INVESTIGATION, AMO UNTS TO IMPOSING A BURDEN ON A PERSON TO PROVE SOMETHING OF WHICH A COURT OR TRIBUNAL CAN TAKE JUDICIAL NOTICE. FOR EXAMPLE, IF A WITNESS DEPOSES THAT HE H AD SEEN A HORSE, THE COURT NEED NOT INSIST UPON HIM FOR A PROOF OF THE ANATOMY OF A HORSE AND CAN TAKE A JUDICIAL NOTICE OF THE HORSE AS AN ANIMAL. THE COUR TS AND TRIBUNALS ARE NOT REQUIRED TO ACT DUMB OR IGNORANT OF THE FACTS OF WH ICH JUDICIAL NOTICE CAN BE TAKEN. THUS, JUST AS A COURT CAN PRESUME WHAT A HOR SE IS, IT CAN AS WELL KNOW WHAT A CRANE IS, AND ALSO THAT CRANE IS AN INTEGRAL PART OF A TRUCK-CRANE WHICH IS REGISTERED AS A HEAVY MOTOR VEHICLE. LACK OF EFFORT AND KNOWLEDGE SUFFICIENT FOR TAKING SUCH JUDICIAL NOTICE SHOULD NOT BE A BUR DEN ON THE CITIZENS IN JUDI- CIAL PROCEEDINGS. AS PROVIDED BY SECTION 56 OF THE EVIDENCE ACT, NO FACT OF WHICH THE COURT WILL TAKE JUDICIAL NOTICE, NEED BE PROVED. THIS EQUALLY APPLIES TO THE TRIBUNALS WHICH ARE NOT IN FACT STRICTLY BOU ND BY THE RULES OF EVIDENCE. 16. THE MOBILE CRANE OF THE ASSESSEE WHICH ADMITTED LY WAS REGISTERED AS A HEAVY MOTOR VEHICLE, WOULD, FOR THE ABOVE REASONS, CLEARLY FALL WITHIN THE EXPRESSION MOTOR LORRIES (WHICH MEANS MOTOR TRUCK S) IN ENTRY NO. IIIE(1A)OF THE TABLE IN APPENDIX I UNDER RULE 5 OF THE SAID RULES, SINCE IT WAS USED BY THE ASSESSEE IN ITS BUSINESS OF RUNNING THE CRANE O N HIRE. 16.1. WE, THEREFORE, HOLD THAT THE TRIBUNAL WAS NOT RIGHT IN HOLDING THAT THE ASSESSEE WAS NOT ENTITLED TO DEPRECIATION AT THE RA TE OF 40 PER CENT. ON CRANE MOUNTED ON MOTOR TRUCK. THE QUESTION REFERRED TO US IS, THEREFORE, ANSWERED ITA NO.343/KOL/2011 A.Y. 2005-06 M/S FIS LOGISTICS P. LTD. V. ACIT CIR-5, KOL PAGE 7 IN THE NEGATIVE, IN FAVOUR OF THE ASSESSEE AND AGAI NST THE REVENUE. THE REFERENCE STANDS DISPOSED OF ACCORDINGLY WITH NO OR DER AS TO COSTS. IN VIEW OF THE ABOVE, WE ALLOW THE APPEAL OF THE AS SESSEE. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 11.07.201 3 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP PRONOUNCED BY SD/- (PRAMOD KUMAR) SD/- (MAHAVIR SINGH) AM JM !' #- 11/ 07/2013 * ++, ++, ++, ++, -, -, -, -, / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '/'+0 1 / CONCERNED CIT 4. 1- / CIT (A) 5. ,45 +++0, +0 , / DR, ITAT, KOLKATA 6. 589 :; / GUARD FILE. BY ORDER/ , +0 , *