The Appeal Was Admitted On The Following Substantial Question Of Law v. We Find No Error In The Order Passed By The Learned Tribunal Or In The Decisionmaking Process

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITA/74/2011COMMISSIONER OF INCOME TAX, KOLKATA-XII, KOLKATAVS.M/s. BOTHRA SHIPPING SERVICES BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 20 FEBRUARY, 2023 Appearance :Mr. Prithu Dudhoria, Adv. …for appellant The Court : - This appeal filed by the revenue under Section 260A of the IncomeTax Act, 1961 (the Act) is directed against the order dated 16.7.2010 passed by theIncome Tax Appellate Tribunal ‘C’ Bench, Kolkata in ITA No. 583/Kol/2010 for theassessment year 2005-06. Heard learned Counsel for the appellant Mr. Prithu Dudhoria, who had appearedin this appeal when the appeal was admitted on 11.3.2011. Though it is submitted bythe learned standing Counsel that he does not have specific instruction to appear, sincehe has appeared when the appeal was admitted we directed him to appear in thismatter and his appearance shall be regularized by the concerned department. The appeal was admitted on the following substantial question of law :- i)Whether the Tribunal committed substantial error of law in allowingdepreciation in terms of Section 32 of the Income Tax Act, 1961 @ 30% bytotally over looking the fact that the rate of depreciation applicable shouldbe 15% as provided in Entry No.III(2) of Part-I of Appendix I of the IncomeTax Rule, 1962?’’depreciation in terms of Section 32 of the Income Tax Act, 1961 @ 30% bytotally over looking the fact that the rate of depreciation applicable shouldbe 15% as provided in Entry No.III(2) of Part-I of Appendix I of the IncomeTax Rule, 1962?’’ The assessee was an appellant before the learned Tribunal challenging the orderpassed by the Commissioner of Income Tax, Kolkata dated 1.2.2010, passed underSection 263 of the Act. The assessee’s contention was that the earth moving vehicles fallunder Entry 111(3)(ii) of part A of Appendix I of the Income Tax Rules 1962 and as suchentitled to depreciation at 30% as allowable in case of motor lorries, since they wereused in absence of running them on hire which was considered in the properperspective by the assessing officer and the action of the CIT in restricting thedepreciation at 15% is unlawful and could not have been done by invoking the powerunder Section 263 of the Act. The learned Tribunal had considered the factual positionwhich was not in dispute; took note of the decisions of the Hon’ble Supreme Court inBose Abraham Vs. State of Kerala, AIR 2001 SC 835 and the decision in the case of CITvs. Gaylord Constructions (2010) 190 Taxman 406 (Kerala), Gujco Carriers Vs. CIT (2002)122 Taxman 206 (Gujarat), Sanco Trans Ltd. Vs. ACIT (1997) 58 TTJ (Mad) 619, GujaratTube Well Co. Vs. ITO 1992 43 TTJ (Ahd) 331 and Hindustan Construction Co. Vs. ITO(1988) TTJ (Ahd) 278 and held that the assessing officer had correctly allowed the claimof depreciation under Section 32 of the Act, applying the rate of 30%. Thus we find thatthe learned Tribunal took note of the undisputed questions of fact and applied thejudicial precedent and affirmed the order passed by the assessing officer We find no error in the order passed by the learned Tribunal or in the decisionmaking process. In the result the appeal is dismissed and the substantial question of law isanswered against the revenue. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)