Usha Johnson vs The Commissioner Of Income Tax
2021 Latest Caselaw 19220 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                    &
                 THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
      TUESDAY, THE 14TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943
                            ITA NO. 20 OF 2021
   AGAINST THE ORDER IN ITA 752/2019 OF I.T.A.TRIBUNAL,COCHIN BENCH,
                              ERNAKULAM
APPELLANT/S:

           USHA JOHNSON
           AGED 53 YEARS
           PROPRIETOR MARUTHAYATH TRANSPORTS, MARUTHAYATH
           BUILDINGS, PALLIMUKKU, KUNDARA, KOLLAM.

           BY ADVS.
           M.GOPIKRISHNAN NAMBIAR
           K.JOHN MATHAI
           JOSON MANAVALAN
           KURYAN THOMAS
           PAULOSE C. ABRAHAM
           RAJA KANNAN



RESPONDENT/S:

           THE COMMISSIONER OF INCOME TAX
           AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURA - 695 003.


OTHER PRESENT:

           SC CHRISTOPHER ABRAHAM




      THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON
14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 ITA No.20/2021
                                   -2-




                         JUDGMENT

S.V. Bhatti, J.

Standing Counsel Christopher Abraham, at the stage of

admission, has accepted notice for respondent. Heard learned

Counsel Mr Kuryan Thomas and learned Standing Counsel Mr

Christopher Abraham for parties.

2. Having regard to the fact that the Tribunal disposed

of the appeals ITA Nos.750 to 752/Coch/2019 vide order dated

28.02.2020, two of the appeals filed against the said order have

been allowed, by following suit, the appeal is allowed on the

same terms.

2.1 Usha Johnson/Assessee is the appellant. The

Commissioner of Income Tax, Thiruvananthapuram/Revenue is

the respondent. The assessee aggrieved by the order dated

28.02.2020 of the Income Tax Appellate Tribunal (for short ITA No.20/2021

'Tribunal') Cochin Bench in ITA No.752/Coch/2019 has filed the

subject appeal. The appeal deals with the issues arising from

the return filed by the assessee for the Assessment Year 2010-

11. The assessee raises the following substantial questions of

law:

i. Whether in the facts and in the circumstances of this case the Appellate Tribunal was justified in dismissing the appeal filed by the Appellant holding that the appellant is not eligible for claiming higher depreciation provided under Clause III (3)

(ii) of the Appendix I to the Income Tax Rules, 1962? ii. Whether on the facts and the circumstances of the case the Appellate Tribunal is right in holding that the work undertaken by the appellant not hiring of motor vehicles, when it is not disputed that the appellant is not using the trucks owned by it for some other non-hiring business run by it ? iii. Is not the finding of fact by the Appellate Tribunal perverse and contrary to documents on record of the files of the Appellate Tribunal?

2.2 The assessee claims depreciation under Appendix-I,

at 30% on trucks used for transporting LPG cylinders by the ITA No.20/2021

assessee in running the business. The Department treated the

case of assessee as entitled to depreciation at 15% on the

vehicles used by the assessee. The vehicles for which

depreciation is claimed are stated as trucks meant for

transporting LPG cylinders of Oil Companies like Indian Oil

Corporation Ltd (IOCL) and Bharat Petroleum Corporation Ltd.

(BPCL) to retail outlets/dealers. The Schedule in the Act reads

thus:

"III. Machinery and Plant

(1) Machinery and plant other than those covered by sub-items (2), (3) and (8) below:

(2) Motor cars, other than those used in a business of running them on hire, acquired or put to use on or after the 1st day of April, 1990.

(3) (i) Aeroplanes - Aeroengines

(ii) Motor buses, motor lorries and motor taxis used in a business of running them on hire"

ITA No.20/2021

3. The counsel submit that the entitlement of

depreciation at 30% on the motor vehicles/trucks used by the

assessee for running the business is no more res integra and

considered in favour of the assessee in the appeal filed by the

assessee in ITA No.96/2015.

We have perused the judgment in ITA No.96/2015. By

following and for the reasons stated in the judgment in ITA

No.96/2015, the questions are answered in favour of the

assessee and against the Revenue.

ITA No.20/2021 is accordingly allowed.

Sd/-

S.V.BHATTI JUDGE

Sd/-

VIJU ABRAHAM JUDGE

jjj ITA No.20/2021

APPENDIX OF ITA 20/2021

PETITIONER ANNEXURE

Annexure A A TRUE COPY OF THE RELEVANT ENTRY IN APPENDIX I TO THE INCOME TAX RULES, 1962.

Annexure B A TRUE COPY OF THE ASSESSMENT ORDER DATED 07/12/2012 PASSED BY THE INCOME TAX OFFICER, WARD-4, KOLLAM.

Annexure C A TRUE COPY OF THE ORDER DATED 10/10/2019 PASSED BY THE COMMISSIONER (APPEALS), THIRUVANANTHAPURAM.

Annexure D A TRUE COPY OF THE COMMON ORDER DATED 28/02/2020 ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH.

Annexure E A TRUE COPY OF THE JUDGMENT DATED 25/11/2020 PASSED IN ITA NOS.96 & 100/2015 BY THIS HON'BLE COURT.

Annexure F A TRUE COPY OF THE SAMPLE WORK ORDER DATED 14/10/2004 RELATING TO THE EARLIER ASSESSMENT YEARS (AY 2006-2007 AND 2007-08)

Annexure G A TRUE COPY OF THE WORK ORDER DATED 25/10/2006 RELATING TO THE ASSESSMENT YEAR 2010-11.

Annexure G1 A TRUE COPY OF THE WORK ORDER DATED 30/10/2007 RELATING TO THE ASSESSMENT YEAR 2010-11.

Annexure G2 A TRUE COPY OF THE WORK ORDER DATED 17/09/2009 RELATING TO THE ASSESSMENT YEAR 2010-11.

Annexure G3 A TRUE COPY OF THE WORK ORDER DATED 13/11/2009 RELATING TO THE ASSESSMENT YEAR 2010-11. ITA No.20/2021

Annexure H A TRUE COPY OF THE CIRCULAR NO.652/1993 DATED 14/06/1993 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES.