- (1.) The Revenue has come in appeal on the following question : (a) The substantial question of law which arises in the present appeal is regarding the correct interpretation of Section 32 of the Income Tax Act and other relevant provisions of the Act and whether on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal erred in confirming the order of CIT(A) and allowing the depreciation to the assessee @ 50% and 40% respectively for A.Ys.1991-92 and 1996-97 on the value of trucks/dumpers owned by the assessee and further failed to appreciate that the assessee was only a civil contractor and was not engaged in the business of, wisely out asset i.e. trucks/dumpers transportation."
(2.) On behalf of the appellant the learned counsel submits that considering the judgment of the Supreme Court in C.I.T. Vs. Gupta Global Exim (P) Ltd. (2008) 171 Taxmann 474 (SC) the correct test which the authorities below had to apply was whether the appellant was in the business of transportation and whether the vehicles were used in the said business.
(3.) In the instant case, the learned C.I.T. for the assessment year 1996-97 recorded a finding that the appellant was required to transport the earth from one place to another for filling and the earth so transported did not belong to the assessee and as such the appellants business receipts to a large extent, can be held to be price of the charges received for transporting the goods from one place to another. The learned tribunal also recorded a finding that the appellant had also shown transportation income from third parties such as Bharat Petroleum Ltd. in its asssessment year 1996-97. Considering these facts the learned C.I.T. (A) arrived at the conclusion that the appellant is entitled to deprecation at higher rate as set out in its order.;