Ita/14/2021 Of Usha Johnson v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 3 DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 ITA NO. 14 OF 2021 AGAINST THE ORDER IN ITA 751/2019 OF I.T.A.TRIBUNAL,COCHIN BENCH,ERNAKULAM APPELLANT/S: USHA JOHNSONAGED 53 YEARSPROPRIETOR, MARUTHAYATH TRANSPORTS, MARUTHAYATH BUILDINGS, PALLIMUKKU, KUNDARA, KOLLAM. BY ADVS.M.GOPIKRISHNAN NAMBIARSRI.K.JOHN MATHAISRI.JOSON MANAVALANSRI.KURYAN THOMASSRI.PAULOSE C. ABRAHAMSRI.RAJA KANNANSMT.S.PARVATHI RESPONDENT/S: THE COMMISSIONER OF INCOME TAXAAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695003. OTHER PRESENT: SC CHRISTOPHER ABRAHAM THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 03.09.2021,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.T.A. No. 14/2021 J U D G M E N T S.V. Bhatti, J. Heard learned Counsel Mr Kuryan Thomas and learnedStanding Counsel Mr Christopher Abraham for parties. 2.Usha Johnson/Assessee is the appellant. TheCommissioner of Income Tax, Thiruvananthapuram/Revenue isthe respondent. 2.1The assessee aggrieved by the order dated 28.02.2020of the Income Tax Appellate Tribunal (for short ‘Tribunal)Cochin Bench in ITA No.751/Coch/2019 has filed the subjectappeal. The appeal deals with the issues arising from the returnfiled by the assessee for the Assessment Year 2009-10. Theassessee raises the following substantial questions of law: I.T.A. No. 14/2021 i. Whether in the facts and in the circumstances of this casethe Appellate Tribunal was justified in dismissing the appealfiled by the Appellant holding that the appellant is not eligiblefor claiming higher depreciation provided under Clause III (3)(ii) of the Appendix I to the Income Tax Rules, 1962? ii.Whether on the facts and the circumstances of the casethe Appellate Tribunal is right in holding that the workundertaken by the appellant not hiring of motor vehicles, whenit is not disputed that the appellant is not using the trucksowned by it for some other non-hiring business run by it ? iii.Is not the finding of fact by the Appellate Tribunalperverse and contrary to documents on record of the files ofthe Appellate Tribunal? 2.2The assessee claims depreciation on motor lorries used by the assessee in running the business, under Appendix-I,at 30%. The Department treated the case of assessee as entitledto depreciation at 15% on the vehicles used by the assessee. The vehicles for which depreciation is claimed are stated as oiltankers transporting fuel from Indian Oil Corporation Ltd I.T.A. No. 14/2021 (IOCL) and Bharat Peroleum Corporation Ltd. (BPCL) to the retail outlets. The Schedule in the Act reads thus: “III. Machinery and Plant (1) Machinery and plant other than those covered by sub-items(2), (3) and (8) below: (2) Motor cars, other than those used in a business of running them on hire, acquired or put to use on or after the 1st day ofApril, 1990. (3) (i) Aeroplanes – Aeroengines (ii) Motor buses, motor lorries and motor taxis used in abusiness of running them on hire” 3.The counsel submit that the entitlement of depreciation at 30% of the motor vehicles/tankers used by the assessee for running the business is no more res integra and considered in favour of the assessee in the appeal filed by theassessee in ITA No.96/2015. I.T.A. No. 14/2021 We have perused the judgment in ITA No.96/2015. Byfollowing and for the reasons stated in the judgment in ITANo.96/2015, the questions are answered in favour of theassessee and against the Revenue. ITA No.14/2021 is accordingly allowed. Sd/- S.V.BHATTI JUDGESd/- VIJU ABRAHAMJUDGE jjj ITA No.14 of 2021 (3) (i) Aeroplanes – Aeroengines (ii) Motor buses, motor lorries and motor taxis used in abusiness of running them on hire” 3.The counsel submit that the entitlement of depreciation at 30% of the motor vehicles/tankers used by the assessee for running the business is no more res integra and considered in favour of the assessee in the appeal filed by theassessee in ITA No.96/2015. I.T.A. No. 14/2021 We have perused the judgment in ITA No.96/2015. Byfollowing and for the reasons stated in the judgment in ITANo.96/2015, the questions are answered in favour of theassessee and against the Revenue. ITA No.14/2021 is accordingly allowed. Sd/- S.V.BHATTI JUDGESd/- VIJU ABRAHAMJUDGE jjj ITA No.14 of 2021 “Oil tankers transporting fuel from Indian Oil Corporation Ltd(IOCL) and Bharat Petroleum Corporation Ltd (BPCL) to the retail outlets”in paragraph 2.2 in page no.3 of the judgment dt.03.09.2021 is correctedas “lorries/trucks for transportation of LPG cylinders of Indian OilCorporation Ltd (IOCL) and Bharat Petroleum Corporation Ltd (BPCL)”and the word “tankers” in the second line of paragraph 3 in page no.4 ofthe judgment is replaced with the word “trucks” vide order dated 1[st] dayof October 2021 in I.A. No.2 of 2021 in ITA No.14 of 2021. Sd/-Deputy Registrar I.T.A. No. 14/2021 APPENDIX OF ITA 14/2021 PETITIONER ANNEXURE ANNEXURE AA TRUE COPY OF THE RELEVANT ENTRY IN APPENDIX I TO THE INCOME TAX RULES, 1962.TO THE INCOME TAX RULES, 1962. ANNEXURE BA TRUE COPY OF THE ASSESSMENT ORDER DATED 26.9.2014 PASSED BY THE INCOME TAX OFFICER, WARD-4,KOLLAM.26.9.2014 PASSED BY THE INCOME TAX OFFICER, WARD-4,KOLLAM. ANNEXURE CA TRUE COPY OF THE ORDER DATED 10.10.2019 PASSED BY THE COMMISSIONER (APPEALS), THIRUVANANTHAPURAM.BY THE COMMISSIONER (APPEALS), THIRUVANANTHAPURAM. ANNEXURE DA TRUE COPY OF THE COMMON ORDER DATED 28.2.2020 ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH.ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. ANNEXURE EA TRUE COPY OF THE JUDGMENT DATED 25.11.2020 PASSED IN ITA NOS. 96 & 100/2015 BY THIS HON'BLE COURT.PASSED IN ITA NOS. 96 & 100/2015 BY THIS HON'BLE COURT. ANNEXURE FA TRUE COPY OF THE SAMPLE WORK ORDER DATED 14.10.2004 RELATING TO THE EARLIER ASSESSMENT YEARS (AY 2006-07 AND 2007-08).14.10.2004 RELATING TO THE EARLIER ASSESSMENT YEARS (AY 2006-07 AND 2007-08). ANNEXURE GA TRUE COPY OF THE WORK ORDER DATED 8.4.2006 RELATING TO THE ASSESSMENT YEAR 2009-10.RELATING TO THE ASSESSMENT YEAR 2009-10. ANNEXURE G1A TRUE COPY OF THE WORK ORDER DATED 8.5.2006 RELATING TO THE ASSESSMENT YEAR 2009-10.RELATING TO THE ASSESSMENT YEAR 2009-10. ANNEXURE G2A TRUE COPY OF THE WORK ORDER DATED 19.7.2006 RELATING TO THE ASSESSMENT YEAR 2009-10.RELATING TO THE ASSESSMENT YEAR 2009-10. ANNEXURE G3A TRUE COPY OF THE WORK ORDER DATED 25.10.2006 RELATING TO THE ASSESSMENT YEAR 2009-10.RELATING TO THE ASSESSMENT YEAR 2009-10. I.T.A. No. 14/2021 -7- ANNEXURE G4TRUE COPY OF THE WORK ORDER DATED 30.10.2007 RELATING TO THE ASSESSMENT YEAR 2009-10. ANNEXURE HA TRUE COPY OF THE CIRCULAR NO.652/1993 DATED 14.6.1993 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES.