Ita/20/2021 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 TUESDAY, THE 14 DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943 ITA NO. 20 OF 2021 AGAINST THE ORDER IN ITA 752/2019 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 NAMBIARK.JOHN MATHAIJOSON MANAVALANKURYAN THOMASPAULOSE C. ABRAHAMRAJA KANNAN RESPONDENT/S: THE COMMISSIONER OF INCOME TAXAAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURA - 695 003. OTHER PRESENT: SC CHRISTOPHER ABRAHAM THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA No.20/2021 S.V. Bhatti, J. J U D G M E N T Standing Counsel Christopher Abraham, at the stage ofadmission, has accepted notice for respondent. Heard learnedCounsel Mr Kuryan Thomas and learned Standing Counsel MrChristopher Abraham for parties. 2.Having regard to the fact that the Tribunal disposedof the appeals ITA Nos.750 to 752/Coch/2019 vide order dated28.02.2020, two of the appeals filed against the said order havebeen allowed, by following suit, the appeal is allowed on thesame terms. 2.1Usha Johnson/Assessee is the appellant. TheCommissioner of Income Tax, Thiruvananthapuram/Revenue is the respondent. The assessee aggrieved by the order dated28.02.2020 of the Income Tax Appellate Tribunal (for short ITA No.20/2021 ‘Tribunal') Cochin Bench in ITA No.752/Coch/2019 has filed the subject appeal. The appeal deals with the issues arising fromthe return filed by the assessee for the Assessment Year 2010-11. The assessee raises the following substantial questions oflaw: 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 under Appendix-I, at 30% on trucks used for transporting LPG cylinders by the ITA No.20/2021 assessee in running the business. The Department treated the case of assessee as entitled to depreciation at 15% on thevehicles used by the assessee. The vehicles for which depreciation is claimed are stated as trucks meant fortransporting LPG cylinders of Oil Companies like Indian OilCorporation Ltd (IOCL) and Bharat Petroleum Corporation Ltd. (BPCL) to retail outlets/dealers. The Schedule in the Act readsthus: “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 runningthem 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” ITA No.20/2021 3.The counsel submit that the entitlement ofdepreciation at 30% on the motor vehicles/trucks used by theassessee for running the business is no more res integra andconsidered in favour of the assessee in the appeal filed by theassessee in ITA No.96/2015. 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. (2) Motor cars, other than those used in a business of runningthem 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” ITA No.20/2021 3.The counsel submit that the entitlement ofdepreciation at 30% on the motor vehicles/trucks used by theassessee for running the business is no more res integra andconsidered in favour of the assessee in the appeal filed by theassessee in ITA No.96/2015. 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.20/2021 is accordingly allowed. Sd/- S.V.BHATTIJUDGE Sd/- VIJU ABRAHAMJUDGE ITA No.20/2021 APPENDIX OF ITA 20/2021 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 07/12/2012 PASSED BY THE INCOME TAX OFFICER, WARD-4, KOLLAM.07/12/2012 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 28/02/2020ISSUED 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 2006-2007 AND 2007-08)14/10/2004 RELATING TO THE EARLIER ASSESSMENT YEARS (AY 2006-2007 AND 2007-08) Annexure GA TRUE COPY OF THE WORK ORDER DATED 25/10/2006 RELATING TO THE ASSESSMENT YEAR 2010-11.RELATING TO THE ASSESSMENT YEAR 2010-11. Annexure G1A TRUE COPY OF THE WORK ORDER DATED 30/10/2007 RELATING TO THE ASSESSMENT YEAR 2010-11.RELATING TO THE ASSESSMENT YEAR 2010-11. Annexure G2A TRUE COPY OF THE WORK ORDER DATED 17/09/2009 RELATING TO THE ASSESSMENT YEAR 2010-11.RELATING TO THE ASSESSMENT YEAR 2010-11. Annexure G3A TRUE COPY OF THE WORK ORDER DATED 13/11/2009 RELATING TO THE ASSESSMENT YEAR 2010-11.RELATING TO THE ASSESSMENT YEAR 2010-11. ITA No.20/2021 -7- Annexure HA TRUE COPY OF THE CIRCULAR NO.652/1993 DATED 14/06/1993 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES.