Mumbai v. M/S. Parikh Petrochemicals

IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL No. 191 OF 2006 Commissioner of Income-Tax-3, Appellant Mumbai Vs M/s. Parikh Petrochemicals ... Respondent Agencies, Pvt. Ltd. Mr. Vimal Gupta, for the appellant. Ms. Usha Dalal, for the respondent. CORAM: Dr. S. RADHAKRISHNAN, & V. C. DAGA, JJ. DATED: DECEMBER 3, 2008. P.C.: ---- . Heard the lerned counsel for the appellant and the learned counsel for the respondent. Following substantial questions of law are raised in the appeal. Whether in the light of the principles laid down by the Supreme Court in the case of ShaanFinance Private Limited reported in 231 ITR308 and in the case of Kotak Mahindra FinanceLimited reported in (Bom) 265 ITR 119 and the decision of Madras High Court in the case ofMadan & Co., reported in 245 ITR 445, the Finance Private Limited 308 - 2 - learned ITAT was right in partly allowing the Appeals as preferred by the Assessee, inter-alia holding that the assessee deserves to be granted higher rate of depreciation as claimed by them? 2. We have perused the judgment of the Tribunal dated 17th August 2005 wherein the Tribunal relying on KotakMahindra Finance Limited reported in (Bom) 265 ITR 119 the judgment of this Court in the case of Kotak Mahindra Finance Limited has clearly held that the appellant therein was in the business of leasing the vehicles on hire, and applying the principles of the aforesaid judgment, the Tribunal found that assessee was having right to claim higher rate of depreciation. 3. It is very clear that this Court relying on the judgment of the Supreme Court in the case of C.I.T C.I.TVs. Shaan Finance Pvt. Ltd. (Supra) held that Vs. Shaan Finance Pvt. Ltd. assessee would be entitled to such a benefit, if an assessee hiring vehicle on lease, were likely to undergo rough use of the vehicle and which should be having more wear and tear cost, and in view thereof higher depreciation is permissible. 4. The learned counsel for the appellant Mr. - 3 - Gupta sought to distinguish the same by referring to the recent judgment of the Supreme Court in the case Commissioner of Income-tax Vs. Gupta Global Exim(P) Ltd. reported in [2008] 171 TAXMAN 474 (SC). of Commissioner of Income-tax Vs. Gupta Global Exim (P) Ltd. Perusal of the said judgment clearly indicates that there is categorical finding of the Assessing Officer that the assessee was occasionally in the business of transportation and mainly he was in the business of importing timber logs and selling them in India. Under the aforesaid facts and circumstances, the assessee was denied highe depreciation in that case. The said judgment has no applicability in the present case. In view thereof, no substantial question of law is involved in this case. In the result, appeal is dismissed. [ V.C. DAGA, J.] [ Dr. S. RADHAKRISHNAN, J.]