V.K. Singhal, J. - (1.) THE Income-tax Appellate Tribunal has referred the following question of law arising out of its order dated March 14, 1986, in respect of the assessment year 1983-84 under Section 256(1) of the Income-tax Act, 1961 : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled to depreciation at 40 per cent. and not at 30 per cent. on the trucks and dumpers used by it in its business and also for plying them on hire ?"
(2.) THE facts of the case as stated are that the assessee is carrying on the business of exploiting the mines and taking out stones with the help of dumpers. On these vehicles, the assessee claimed depreciation at 40 per cent. THE Income-tax Officer had held that the special rate of depreciation at 40 per cent. was not applicable inasmuch as the assessee did not use the vehicles for any public transport business. THEy were being used for its own business. THE depreciation was, therefore, restricted to 30 per cent. In appeal, the Appellate Assistant Commissioner enhanced the rate to 40 per cent. relying on the decision in the case of Manjeet Stone Co. (I.T.A. No. 148/JP/84 decided on November 19, 1984). The arguments of learned counsel for the parties have been heard. The decision which has been relied upon by learned counsel for the assessee has already been overruled by this court in the case of CIT v. Manjeet Stone Co. [1991] 190 ITR 183. Learned counsel for the assessee has submitted that the Tribunal in respect of the assessment years 1981-82 and 1984-85 has accepted the contention of the assessee in this regard. A perusal of the assessment order shows that no such point was raised and so is the position of the order of the appellate authority. The Tribunal has observed that the assessee is carrying on the business of exploiting the mines and taking out stones with the help of dumpers on which the depreciation was claimed at the rate of 40 per cent. The contention of the Revenue was that the vehicles were not used for public transport and were used by the assessee for its own business. In view of the factual position as stated, we do not feel that the assessee is entitled to raise this point at this stage. Since the decision given in the case of Manjeet Stone Company, relied upon, has already been reversed, it is accordingly held that the Tribunal was not justified in holding that the assessee is entitled to depreciation at 40 per cent. and not 30 per cent. on the trucks and dumpers used by it in its business and also for plying them on hire. Learned counsel for the assessee has also relied upon the decision in the case of CIT v. Champalal [1995] 211 ITR 201 (Raj). It is also stated that the Tribunal in subsequent years has considered the assessee as running on the business of trucks on hire. It has also been prayed that the matter should now be remitted back to the Tribunal in the light of the decision in the case of CIT v. Champalal [1995] 211 ITR 201 (Raj). As observed above, at no point of time was this contention raised by the assessee and the Income-tax Officer recorded a finding that the assessee is not engaged in the transport business and the vehicles are used for giving on hire only when they are not needed. Before the Appellate Assistant Commissioner this contention was not raised and the order in the case of Manjeet Stone Co., was relied upon. The decision in the case of Champalal [1995] 211 ITR 201 (Raj), is on the application under Section 256(2) of the Income-tax Act and it was said that the Tribunal has not applied its mind to the facts and circumstances of the case as referred to in the statement of the case. Unless the question has been framed under Section 256(1) the court cannot travel beyond what has been stated in the statement of the case. The question which has been referred was decided by the Tribunal on the basis of its decision given in the case of Manjeet Stone Co., against which this court has taken the view that the assessee is not entitled to depreciation at the rate of 40 per cent. In these circumstances, this contention has no force. Consequently, the question is answered in the negative and in favour of the Revenue and it is held that the Tribunal was not right in holding that the assessee is entitled to depreciation at 40 per cent. and not at 30 per cent. on the trucks and dumpers used by it in its business and also for plying them on hire.;