The Revenue Has Raised The Following Substantial Question Of Law Forconsideration v. Cit Which Has Been Upheld By Thehon’ble High Court At Calcutta Vide Its Order Dated 5[Th] September, 2016 In Itat

O-4 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/119/2023IA NO: GA/1/2023, GA/2/2023PRINCIPAL COMMISSIONER OF INCOME TAX 1,KOLKATAVSM/S DOZCO INFRATECH PVT LTD BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 7[th] August, 2023 Appearance :Mr. Tilak Mitra, Adv.…for appellant Mr. Amit Agarwala, Adv.….for respondent The Court : - We have heard Mr. Tilak Mitra, learned standing Counsel forthe revenue/appellant and Mr. Amit Agarwala, learned Advocate for therespondent. It appears there is a delay of 763 days in filing the appeal. Though theexplanation offered for the appellant is not very convincing yet the appeal hasbeen filed under Section 260A of the Income Tax Act, 1961, we are required tosee as to whether any substantial question of law arises for consideration in thisappeal. Therefore, we exercise discretion and condone the delay in filing theappeal. GA/1/2023 is allowed. Delay in filing the appeal is condoned. This appeal filed by the revenue under Section 260A of the Income TaxAct, 1961 (the Act) is directed against the order passed by the Income Tax Appellate Tribunal “A” Bench, Kolkata vide order dated 21.10.2020 passed inITA/1438/Kol/2018 relating to Assessment Year 2010-2011. The revenue has raised the following substantial question of law forconsideration : “WHETHER the Learned Tribunal has erred in law and infact by treating theexcavators or bulldozers are motor vehicles and not plant and machinery andtherefore allowed to claim depreciation at the rate of 15% instead of 30% inspite ofthe fact that Bothra Shipping Services Vs. CIT which has been upheld by theHon’ble High Court at Calcutta vide its order dated 5[th] September, 2016 in ITAT no.144 of 2015 does not say anything in favour of the assessee in categorical similarcircumstances in the present appeal in hand?” It may not be disputed by the revenue that the issueinvolved in theinstant case is squarely covered against the revenue in the light of the decisionof this Court COMMISSIONER OF INCOME-TAX Vs. BOTHRA SHIPPINGSERVICES, [2023] 149 taxmann.com 461 (Calcutta). The operative portion of thejudgment is reads as follows:- “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 movingvehicles fall under Entry 111(3)(ii) of part A of Appendix I of the Income Tax Rules1962 and as such entitled to depreciation at 30% as allowable in case of motorlorries, since they were used in absence of running them on hire which wasconsidered in the proper perspective by the assessing officer and the action of theCIT in restricting the depreciation at 15% is unlawful and could not have been doneby invoking the power under Section 263 of the Act. The learned Tribunal hadconsidered the factual position which was not in dispute; took note of the decisions of the Hon’ble Supreme Court in Bose Abraham Vs. State of Kerala, 2001taxmann.com 1204/AIR 2001 SC 835 and the decision in the case of CIT vs.Gaylord Constructions (2010) 190 Taxman 406 (Kerala), Gujco Carriers Vs. CIT(2002) 122 Taxman 206 (Gujarat), Sanco Trans Ltd. Vs. Asstt. CIT (1997) 61 ITD317 (Mad.), Gujarat Tube Well Co. Vs. ITO 1992 43 TT 331(Ahd) and HindustanConstruction Co. Vs. ITO (1989) 30 ITD 171 (Ahd.-Trib) and held that the assessingofficer had correctly allowed the claim of depreciation under Section 32 of the Act,applying the rate of 30%. Thus we find that the learned Tribunal took note of theundisputed questions of fact and applied the judicial precedent and affirmed theorder passed by the assessing officer.” Following the above decision the appeal filed by the revenue is dismissedand the substantial questions of law are decided against the revenue. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)