The Asstt. Commr. of Income Tax, Gandhidham Circle, GANDHIDHAM V. M/s Bhimji Velji Sorathia, Adipur-Kutch

ITA 346/RJT/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8889 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 16-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Assessee Lawyers: MJ RANPURA
• Keywords: Depreciation
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO. 346/RJT/2016 (ASSESSMENT YEAR: 2012-13) ASSISTANT COMMISSIONER OF INCOME-TAX, GANDHIDHAM CIRCLE, GANDHIDHAM-KUTCH APPELL ANT VS. M/S. BHIMJI VELJI SORATHIA CONSTRUCTION, PLOT NO.112/113, ARBUDA NAGAR, NR. KAPIL MUNI ASHRAM, ADIPUR-KUTCH RESPONDENT /BY REVENUE : SHRI C. S. ANJARIA, SR. D.R /BY ASSESSEE : SHRI M. J. RANPURA, A.R. /DATE OF HEARING : 13.02.2018 /DATE OF PRONOUNCEMENT : 20.02.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2012-13 A RISES AGAINST THE CIT(A)-3, RAJKOTS ORDER DATED 06.06.2016 IN CASE N O. CIT(A)-3/A3/0958/14-15, IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 19 61; IN SHORT THE ACT. 2. WE NOTICE AT THE OUTSET THAT THE REVENUES SOLE SUBSTANTIVE GROUND PLEADS THAT THE CIT(A) HAS ERRED ON FACTS AS WELL AS IN LA W IN DEFINING ASSESSEES BUSINESS AS TRANSPORTER THEREBY CONCLUDING THAT IT IS ENTITL ED FOR HIGHER RATE OF DEPRECIATION ON DUMPERS AS AGAINST 15% ALLOWED IN ASSESSMENT PRO CEEDINGS RESULTING IN ITA NO. 346/RJT/16 [ACIT VS. M/S. BHIMJI VELJI SORA THIA] A.Y. 2012-13 - 2 - DISALLOWANCE OF RS.77,61,266/- IN QUESTION. THE LO WER APPELLATE FINDINGS DISCUSSED AT LENGTH ALL THE RELEVANT FACTS, ASSESSI NG OFFICERS REASONING FOR INVOKING THE IMPUGNED DISALLOWANCE AS WELL AS ASSES SEES SUBMISSIONS AS UNDER: 5.1.0 I HAVE CAREFULLY CONSIDERED THE SUBMISSION O F THE APPELLANT AND PERUSED FACTS OF THE CASE IN A.O'S ORDER. GROUND NO.1, 2 & 3 ARE BASICALLY ARISING OUT OF THE GRIEVANCE FROM THE A.O'S ACTION OF DENYING HIGH ER DEPRECIATION ON VEHICLES ON THE PROPOSITION THAT APPELLANT IS NOT IN THE BUSINE SS OF RUNNING VEHICLES ON HIRE. THE UNDISPUTED FACT IS THAT APPELLANT IS CIVIL CONT RACTOR AND HAS UNDERTAKEN CONTRACT/SUB-CONTRACT OF ROAD-MAKING. IT UTILISED C ERTAIN VEHICLES, I.E. TRACTORS/JCB MACHINES/CONCRETE MIXTURES/HYDRAULIC J ACKS ETC. WHILE DISCHARGING ITS OWN CONTRACTUAL OBLIGATIONS AND CLAIMED DEPRECI ATION @ 15% AND SIMULTANEOUSLY ALSO CARRIED OUT TRANSPORTATION WORK FOR OTHERS UTILISING SEPARATE VEHICLES, I.E. TRACTORS/JCB MACHINES/CONCRETE MIXTU RES/HYDRAULIC JACKS ETC. AND CLAIMED DEPRECIATION @ 30% WITH THE UNDERSTANDING T HAT THESE VEHICLES HAVE BEEN PUT TO USE FOR TRANSPORT BUSINESS. THE SAID AR GUMENT WAS NOT ACCEPTED BY THE A.O. BASICALLY BECAUSE OF FOLLOWING REASONS :- 1. THERE WAS NO SEPARATE INCOME FROM HIRE / FREIGHT AND THUS IT CANNOT BE SAID THAT APPELLANT IS ALSO IN THE BUSINESS OF TRAN SPORTATION. A.O. OPINED THAT APPELLANT IS IN THE BUSINESS OF MINING WHICH I NCLUDES ACTIVITIES OF TRANSPORTING THE MINED SUBSTANCES AND AS SUCH IT CA NNOT BE TERMED AS INDULGING IN THE BUSINESS OF RUNNING VEHICLES ON HI RE. THE A.O. ALSO POINTED OUT THAT ALL THE TENDERS ARE IN THE NATURE OF CIVIL CONTRACT / SUBCONTRACT AND MINING FOR WHICH TDS HAS BEEN DEDUC TED @ 2% UNDER S. 194C (AND NOT U/S. 1941 WHICH IS APPLICABLE FOR THE BUSINESS OF UTILIZATION OF TRANSPORT VEHICLES). 2. A.O. ALSO RELIED ON CERTAIN PROPOSITION THAT THO UGH JCB/EARTH-MOVING MACHINES ARE ALSO REGISTERED AS MOTOR LORRY IN MOTO R VEHICLE ACT BUT THE SAME ARE NOT ROAD TRANSPORT VEHICLES. HE OPINED THA T SIMILAR IS THE CASE IN RESPECT OF DUMPERS. 5.1.1 THUS, THE ISSUE REVOLVES AROUND THE QUESTION OF ACTUAL ACTIVITY OF THE APPELLANT (CAN IT BE SAID TO BE INDULGED ALSO IN (I .E., AT LEAST PARTLY) THE BUSINESS OF RUNNING ITS EARTH-MOVING ASSETS ON HIRE AND WHET HER THESE EARTH-MOVING ASSETS CAN BE TERMED AS VEHICLE FOR THE PURPOSE OF DEPRECI ATION IN THE INCOME TAX ACT. 5.1.2 THE A.O. HAS NOT EMPHASIZED ON HIS PROPOSITIO N THAT THE EARTH-MOVING ASSETS USED BY APPELLANT ARE NOT MOTOR VEHICLE. IT APPEARS THAT HE HAS NOT PROCEEDED ON THIS ARGUMENT TO DENY DEPRECIATION UND ER THE CATEGORY 'VEHICLE' ON THE IMPUGNED ASSETS OF THE APPELLANT. AS SUCH NO AD JUDICATION IS NEEDED ON THIS PROPOSITION, ESPECIALLY WHEN THE LD. AR HAS POINTED OUT TOWARDS DECISION OF HON'BLE ITAT, RAJKOT BENCH IN THE CASE OF M/S. R. R . CONSTRUCTION, VIDE ITA NO.287 & 288/RJT/2008 FOR A.Y. 2002-03 & 2004-05 WH EREIN IT HAS BEEN EXPLICITLY HELD THAT DUMPERS USED FOR LOADING-UNLOA DING AND TRANSPORTATION OF EXCAVATED MATERIAL ARE ROAD TRANSPORT VEHICLES. ITA NO. 346/RJT/16 [ACIT VS. M/S. BHIMJI VELJI SORA THIA] A.Y. 2012-13 - 3 - 5.1.3 THE LD. AR HAS ARGUED THAT THE APPELLANT HAD USED MORE THAN 50 SUCH VEHICLES TO CARRY OUT THE BUSINESS OF TRANSPORT AND REMOVAL OF OVER- BURDENED/WASTE ROCK OF THIRD PARTIES. HE ARGUED THA T THE CONTRACTS ALLOTTED TO HIM WERE PARTLY OR FULLY FOR THIS PURPOSE. HE SUBMITTED COPY OF THE LETTER OF INTENT OF SUCH CONTRACTS. A COPY OF PURCHASE ORDER FROM M/S. JINDAL SAW LIMITED NO.4720000245, DT.30/6/2011 WAS MADE AVAILABLE WHIC H WERE DETAILING THE 'TERMS OF DELIVERY' AS UNDER :- (QUOTE) 'TRANSPORTATION: TRANSPORTATION OF CRUSHED MATERIAL FROM CRUSHER SITE UP TO BUYER'S SITE AT NANAKAPAYA, DIST T.: KUTCHH, GUJARAT SHALL BE ARRANGED BY THE CONTRACTOR FREIGHT: EXTRA @ RS. 145/- PMT SHALL BE TO BUYER'S ACCOUNT WORK DESCRIPTION: CONTRACTOR (M/S. BHIMJI VEKLI SOR ATHIA)SHALL CARRY OUT THE JOB WORK AS PER THE FOLLOWING. (A) SHALL UNLOAD THE IRON ORE FROM LORRIES BEING RE CEIVED AT THEIR SITE FOR CRUSHING. (B) SHALL CRUSH THE IRON ORE LUMPS SUPPLIED BY BUYE R FOR MAKING OF IRON ORE FINES AT HIS OWN CRUSHER AT ADIPUR TO DESIRED S IZE GIVEN IN THE SPECIFICATION AND LOAD THE MATERIAL TO DUMPERS. (C) SHALL ENSURE CRUSHING OF A MINIMUM 150-200 MT O N DAILY BASIS. HOWEVER, BUYER SHALL MAKE ALLOUT EFFORTS TO MAKE AV AILABLE MAXIMUM QUANTITY POSSIBLE FOR CRUSHING. (D) SHALL ENSURE NOT RECEIVING OF ANY OTHER MATERIA L INSIDE THE CRUSHING YARD DURING CONTRACT PERIOD OF JINDAL SAW LIMITED. BUYER MAY NOMINATE TWO PERSONS TO SUPERVISE THE CRUSHING OPERATION AT THE CRUSHER SITE. (E) SHALL SUBMIT ALL THE CHALANS, PERMITS, SEELER'S WEIGHMENT SLIP AND RECEIVER'S WEIGHMENT SLIP AND ANY OTHER DOCUMENTS R ECEIVED DURING RECEIVING OF IRON ORE LUMPS FROM THE SUPPLIERS TO B UYER'S REPRESENTATIVE ON DAILY BASIS FOR THEIR NECESSARY RECORD AND ACCOUNTI NG PURPOSE. ' (UNQUOTE) 5.1.4 ANOTHER WORK ORDER FROM M/S, PSL INFRASTRUCTU RE AND- PORT PVT. LTD., REF.NO.PSLIPPL/WO/BVS/12/02, DT.3 1/1/2012 WAS MADE AVAILABLE SHOWING 'SCOPE OF WORK' AS UNDER.- * DEVELOPMENT OF LAND (FILLING) AT BERTH NO-16 TH BACKUP AREA (723.33M X 300M = 2,17,000 SQM.AREA) AT KANDLA PORT AS PER SPECIFIC ATION, STANDARDS & CODES MENTIONED IN TENDER DOCUMENT (ENCLOSED AS ANNX.1) F OR DEVELOPMENT OF MULTIPURPOSE CARGO BERTH NO. 16 AT KANDLA PORT AND REQUIRED LEVELS AS PER DIRECTION OF INDEPENDENT ENGINEER APPOINTED BY M/S. PSL INFRASTRUCTURE AND PORTS PVT. LTD. AND M/S. KANDLA PORT. * PROCUREMENT OF FILLING MATERIAL, TRANSPORTATION O F FILLING MATERIAL, LEVELING AND SPREADING WITH BROUGHT OUT MATERIAL WITHIN AREA AS SHOWN IN GENERAL LAY OUT DRAWING OF 15TH NO. BERTH AT KANDLA PORT. * MOBILIZATION OF NECESSARY MACHINERIES AND EQUIPME NTS REQUIRED FOR THE ABOVE WORK. * ARRANGEMENT OF TEMPORARY OFFICE AT SITE 5.1.5 LD. AR ALSO SUBMITTED AUDIT REPORT TO EMPHASI ZE THAT FORM NO.3CD CLEARLY DECLARED THE NATURE OF BUSINESS OF THE APPELLANT AS 'CIVIL CONTRACTOR AND ITA NO. 346/RJT/16 [ACIT VS. M/S. BHIMJI VELJI SORA THIA] A.Y. 2012-13 - 4 - TRANSPORTATION'. COPIES OF SEPARATE LEDGER ACCOUNTS FOR FREIGHT CHARGES AND TRANSPORTATION CHARGES RECEIVED WERE ALSO SUBMITTED BEFORE THE A.O. AS WELL AS BEFORE ME. 5.1.6 I AGREE WITH LD. AR THAT APPELLANT HAD PLIED ITS VEHICLE ON HIRE FOR THIRD PARTIES AND WAS ENGAGED IN THE BUSINESS OF TRANSPOR TING MATERIALS AS PER ORDERS OF THE THIRD PARTIES. 5.1.7 SIMILAR ISSUE HAD ARISEN IN THE CASE OF M/S. H. D. ENTERPRISES IN ITA NO.CIT(A)-3/A3/1035/14-15, DT.3/3/2016 WHEREIN THE UNDERSIGNED HAS FOLLOWED THE DECISION OF THE LD. CIT(A), JAMNAGAR ON IDENTIC AL SET OF FACTS IN THE CASE OF M/S. P.C PATCL & CO, FOR AY 2012-13. IT WAS HELD B Y THE LD. CIT(A) AS UNDER: THE ISSUE INVOLVED IN THIS MATTER NEEDS TO BE LOOK ED AT FROM THE FOLLOWING ANGLES; 1. WHETHER THE ASSETS WERE ELIGIBLE FOR HIGHER RATE 2. WHETHER THE ASSETS WERE GIVEN ON HIRE 3. WHETHER THE ASSETS WERE USED IN TRANSPORTATIO N OF SOMETHING 4. WHETHER THE ASSETS WERE USED IN ASSES SEE'S O WN BUSINESS. AS REGARDS THE FIRST POINT REGARDING THE ASSETS BEI NG ELIGIBLE FOR HIGHER RATE OF DEPRECIATION, I UNDERSTAND THAT THERE IS NO DISPUTE EVEN FROM THE SIDE OF THE AO. HENCE, WE HAVE TO CONCLUDE THAT ASSETS ARE ELIGIBLE FOR HIGHER RATE OF DEPRECIATION. THE NEXT QUESTION IS THAT WHETHER THE ASSETS WERE A CTUALLY, GIVEN ON HIRE OR WERE USED IN THE BUSINESS OF HIRING. I HAVE ATTE NDED TO THIS POINT IN DETAIL IN THE FORGOING PARAGRAPHS AND ELABORATED EARLIER, AFTER D ULY CONSIDERING ALL THE FACTS AND EVIDENCES. THE ABOVE REFERRED DISCUSSION HAS CO NVINCED ME THAT THE ASSETS WERE ACTUALLY GIVEN ON HIRE OR WERE USED IN THE BUS INESS OF RUNNING THEM ON HIRE. THE ASSETS WHICH ARE OTHERWISE ELIGIBLE FOR HIGHER RATE OF DEPRECIATION CAN CLAIM THAT HIGHER RATE ONLY IF THEY ARE ACTUALL Y USED IN AN ACTIVITY WHICH INVOLVES TRANSPORTATION OF 'SOMETHING.' THUS, THE N EXT DUTY ON ME IS TO ASCERTAIN AS TO WHETHER THE ASSETS WHICH WERE DECIDED TO HAVE BEEN HIRED BY THE APPELLANT (AS CONCLUDED HEREIN ABOVE) WERE ACTUALLY PUT TO US E FOR ACTIVITY WHICH HAD IN ITSELF THE ATTRIBUTES OF TRANSPORTATION OF SOMETHIN G. I AM OF THE OPINION THAT THE ISSUE IS THAT OF FACT AND FACT ONLY WHEN I AM ENTRU STED WITH THE TASK OF DECIDING THE ACTUAL USE TO WHICH THE ASSET IS PUT TO. THE ASSETS WERE 'GIVEN ON HIRE ' BY THE APPELLANT AND WERE 'TAKEN ON HIRE' OR 'HIRED' TO SO ME OF THE ENTITIES AND HENCE IT WERE THOSE ENTITIES THAT ACTUALLY PUT THE ASSETS TO USE. SO, IT IS THE WORDS OF THOSE USERS THAT ARE TO BE CONSIDERED AS FINAL AS FAR AS THE DECISION AS TO THE USE TO WHICH THE ASSETS WERE PUT TO, IS SOUGHT TO BE DECID ED. I WAS MADE AVAILABLE WITH CERTIFICATES ISSUED BY THESE ENTITIES TO WHICH THE ASSETS WERE GIVEN ON HIRE BY THE APPELLANT. IN THOSE CERTIFICATES THE ENTITIES HAVE ELABORATED THE PURPOSE FOR WHICH THEY HAD HIRED THE ASSETS IN QUESTION. THE INTENDED USES INCLUDE REMOVAL OF MINERALS FROM PIT HEAD TO STOCK YARD, REMOVAL OF OV ERBURDEN FROM AREA TO BE EXCAVATED TO SOME OTHER FILLING POINT ETC. IT WAS C ONTENDED BY THE APPELLANT THAT THESE ACTIVITIES DID INVOLVE 'TAKING SOMETHING FROM ONE PLACE AND RELOCATING IT TO SOME OTHER PLACE. THE APPELLANT CLAIMED THAT THIS I S NOTHING ELSE BUT TRANSPORTATION. I HAVE CONSIDERED THIS CONTENTION O F THE APPELLANT FROM THE STAND POINT OF FACT AND LOGIC AND I THINK THAT I TEND TO AGREE WITH THE LOGIC PUT FORWARD ITA NO. 346/RJT/16 [ACIT VS. M/S. BHIMJI VELJI SORA THIA] A.Y. 2012-13 - 5 - BY THE APPELLANT ON THE BASIS OF THE FACT ON WHICH THAT LOGIC IS CONSTRUCTED. HENCE, I AM OF THE OPINION THAT THE ASSETS GIVEN ON HIRE B Y THE APPELLANT WERE USED BY THOSE WHO TOOK THEM ON HIRE, FOR SOME ACTIVITY WHIC H WERE OF THE NATURE OF TRANSPORTATION OF SOMETHING. THIS LEAVES THE LAST POINT TO BE DISCUSSED. THE EST ABLISHED LAW STATES THAT EVEN IF THE ASSETS ARE USED FOR ANY ACTIVITY WHICH HAS THE CHARACTERISTICS OF TRANSPORTATION, IF THE SAME ARE USED IN ASSESSEE'S OWN BUSINESS, AND THAT OWN BUSINESS IS SOMETHING OTHER THAN THE BUSINESS OF TR ANSPORTATION, THEN, HIGHER RATE OF DEPRECIATION IS NOT ALLOWED. THE LEARNED AO HAS REFERRED TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GUPTA GLOBAL E XIM P.LTD. AND ALSO REFERRED TO THE 'TEST OF USER' ELABORATED IN THE SA ID JUDGMENT. HOWEVER, IN MY CONSIDERED OPINION, THE TEST OF USER WILL COME INTO PLAY ONLY WHEN FACTS POINT OUT THAT THE ASSETS WERE USED IN ASSESSEE'S OWN BUSINES S. IF THE ASSETS ARE USED IN ASSESSEE'S OWN BUSINESS, THAN IT WILL HAVE TO BE DE CIDED AS TO WHETHER THAT BUSINESS OF THE ASSESSEE IS THAT OF TRANSPORTATION OR NOT. IN THE CASE UNDER CONSIDERATION, I AM OF THE OPINION THAT IT IS CLEAR LY ESTABLISHED THAT THE APPELLANT HAD GIVEN ASSETS ON HIRE IN TERMS OF TENDER. ONCE I T IS ESTABLISHED THAT THE VEHICLES WERE GIVEN ON HIRE IN RESPONSE TO AN OPEN TENDER, T HE EXISTENCE OF TWO PARTIES ARE CONFIRMED AND THERE IS NO SCOPE WHATSOEVER TO SPECU LATE WHETHER THE SAME WERE USED IN THE BUSINESS OF THE APPELLANT. IT IS ABSURD TO THINK THAT ONE WILL HIRE ONE'S ASSETS TO A 'THIRD PARTY' IN ORDER TO CARRY OUT 'ON E'S OWN BUSINESS OPERATION.' THUS, I AM QUITE CLEAR IN MY MIND THAT FACTS OF THE CASE CLEARLY POINT TO A SITUATION THAT THE ASSETS WERE NOT USED IN APPELLANT'S OWN BU SINESS. BUSINESS TRANSACTION INVOLVED HERE IS THAT THE APPELLANT HAS GIVEN CERTA IN OF HIS ASSETS ON HIRE TO CERTAIN THIRD PARTIES AND THOSE THIRD PARTIES HAVE PUT THOSE ASSETS TO USE IN SUCH ACTIVITIES WHICH DID HAVE THE CHARACTERISTICS OF TR ANSPORTATION ATTACHED TO THEM. FINALLY, ON THE BASIS OF THE PERUSAL OF THE ASSESS MENT ORDER PASSED BY THE LEARNED AO, THE SUBMISSION OF THE APPELLANT AND THE EVIDENC ES PRODUCED BEFORE ME BY THE APPELLANT, I HAVE COME TO THE CONCLUSION THAT; 1. THAT THE ASSETS (EQUIPMENTS / VEHICLES) IN QUES TION WERE BASICALLY OF THE NATURE ON WHICH HIGHER RATE OF DEPRECIATION IS ALLOWABLE, SUBJECT TO FULFILLMENT OF SPECIFIED CONDITIONS 2. THE BUSINESS OF THE APPELLANT DID CONSIST OF 'G IVING EQUIPMENTS / VEHICLES ON HIRE 3. THE EQUIPMENT / VEHICLES WERE GIVEN ON HIRE BY T HE APPELLANT DURING THE COURSE OF THE YEAR UNDER CONSIDERATION 4. THE EQUIPMENTS / VEHICLES THUS GIVEN ON HIRE WE RE PUT TO USE BY THOSE WHO HAD TAKEN THEM ON HIRE FOR ACTIVITIES (AM ONGST OTHERS) WHICH DID HAVE CHARACTERISTICS OF TRANSPORTATION AND, IN LIGHT OF THE ABOVE CONCLUSION, I DO NOT SEE ANY REASON WHY THE APPELLANT SHOULD BE DENIED THE BENEFIT CONFERRED ON IT BY THE PROVISION OF THE LAW. I AM OF THE CONSIDERED OPINION THAT THE AP PELLANT'S CLAIM FOR HIGHER RATE OF DEPRECIATION ON ASSETS IN QUESTION I S COMPLETELY SUPPORTED BY THE PROVISIONS OF THE LAW AND EXISTENCE OF THE F ACTS. HENCE, IN MY OPINION, THE LEARNED ASSESSING OFFICER WAS NOT JUST IFIED IN CONCLUDING THAT THE APPELLANT WAS NOT ENTITLED TO DEPRECIATION AT A HIGHER RATE OF 30%, AND THAT THE AO ERRED ON LAW IN DISALLOWING THE DEPRECI ATION AMOUNTING TO RS. 6,08,20,585. ACCORDINGLY THIS DISALLOWANCE/ADDITION MADE BY THE AO IS DELETED AND THE GROUND OF APPEAL IS ALLOWED.' (UNQU OTE) ITA NO. 346/RJT/16 [ACIT VS. M/S. BHIMJI VELJI SORA THIA] A.Y. 2012-13 - 6 - 5.1.8 FACTS AND CIRCUMSTANCES BEING SAME, I PROPOSE TO FOLLOW THE ABOVE REFERRED ORDER. FURTHER, I AGREE WITH LD. AR THAT D ECISION OF HON'BLE ITAT RAJKOT IN THE CASE OF M/S. R. R. CONSTRUCTION IN ITA NO.38 5/RJT/2009 IS FULLY APPLICABLE IN THIS CASE. IN MY OPINION, LD. AR IS CORRECT IN H IS PROPOSITION THAT APPELLANT'S WORK INCLUDE PROVIDING ITS VEHICLES FOR TRANSPORTAT ION TO THE THIRD PARTIES AND THE AMOUNT RECEIVED ON THIS COUNT CONSTITUTE PART OF BU SINESS RECEIPTS OF THE APPELLANT AND THEREFORE SUCH VEHICLES ARE ELIGIBLE FOR DEPREC IATION AT THE HIGHER RATE OF 30% TO THE TUNE OF RS.1,55,22,532/-. THIS GROUND OF APP EAL IS ALLOWED. 3. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY C ONTENDS IN THE COURSE OF HEARING THAT THE ASSESSING OFFICER HAD RIGHTLY HELD THE ASSESSEE TO BE NOT ENGAGED IN THE TRANSPORT BUSINESS AS WELL AS IN CONCLUDING THAT THE JCB/EARTH MOVING MACHINES ARE NOT ROAD TRANSPORT VEHICLES. LEARNED DEPARTMENTAL REPRESENTATIVE HOWEVER FAILS TO DISPUTE THE FACT THAT A CO-ORDINAT E BENCH IN R. R. CONSTRUCTION CASE (SUPRA) HAS ALREADY REVERSED BOTH THE SAID REA SONS AS EXTRACTED IN LOWER APPELLATE FINDINGS HEREINABOVE. WE THEREFORE FIND NO REASON TO ADOPT A DIFFERENT APPROACH IN THE INSTANT CASE. THE REVENUES SOLE S UBSTANTIVE GROUND IS THEREFORE DECLINED. 4. THIS REVENUES APPEAL IS ACCORDINGLY DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 20 TH DAY OF FEBRUARY, 2018.] SD/- SD/- (PRADIP KUMAR KEDIA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD: DATED 20/02/2018 TRUE COPY S.K.SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT