IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 ITA.No. 672 of 2009() --------------------- ITA.517/COCH/2007 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- N.D.JOSEPH, TRAVANCORE EARTH MOVING COMPANY, HILL PALACE JUNCTION,THRIPUNITHURA, ERNAKULAM DISTRICT-682 305. BY ADV. SRI.P.BALAKRISHNAN (E) RESPONDENT(S): APPELLANT ------------------------ THE COMMISSIONER OF INCOME TAX,COCHIN. ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... I.T. Appeal No.672 of 2009 .................................................................... Dated this the 11th day of January, 2010. JUDGMENT Ramachandran Nair, J. We have heard Adv. Sri.P.Balakrishnan appearing for the appellant and Standing Counsel appearing for the respondent. Of the three issues raised in the appeal filed by the assessee, we notice that the first two pertain to estimation of income under various heads which got modified by the two appellate authorities. We do not find any substantial question of law arising in regard to estimation of income under two items covered by question numbers 1 and 2. 2. The next question raised pertains to assessee's claim for higher rate of depreciation on tipper trucks and JCB mainly used for own business and partly let out to other parties. Counsel for the appellant submitted that occasional letting out of the tipper trucks and JCB entitles the assessee for higher rate of depreciation under Item 3 of Appendix I of the Depreciation Schedule under Rule 5 of the Income Tax Rules. However, we notice that higher rate of depreciation is available for motor bus, motor trailers and motor taxies used in the 2 business of running them on hire. Even though counsel for the assessee has relied on decision of Supreme Court in COMMISSIONER OF INCOME-TAX VS. GUPTA GLOBAL EXIM P. LTD. reported in (2008) 305 ITR 132, we do not think the decision of the Supreme Court supports assessee's case because in that case the claim of the assessee was that besides trading in timber, assessee was letting out the truck on hire. On the other hand, in this case assessee being a contractor has used the equipments namely, tippers and JCB for his own business and occasionally the items were let on hire earning hire charges. We are of the view that in order to entitle for higher rate of depreciation, the main use of the vehicles should be to let on hire and not to use in assessee's own business. Since the items were predominantly used in assessee's own business, we feel assessee is entitled to depreciation only at normal rate which is granted. Consequently appeal is dismissed. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms