1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.912 OF 2007 The Commissioner of Income Tax ..Appellant. V/s. M/s. Afcons Pauling (I) Ltd. ..Respondent. Mr. Suresh Kumar for appellant. Mr. S.J. Mehta i/b. M/s. S.P. Mehta for respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 31ST JULY, 2009. P.C. :- 1. Heard learned counsel for the parties. The appeal was admitted on the following substantial questions of law:- 1. Whether on the facts and in the circumstances of the case and in law the ITAT WAS justified to hold that provisions of section 148 are not applicable ? 2. Whether on the facts and in the circumstances of the case and in law the ITAT erred in allowing depreciation of Rs.45,43,711/- withdraw in the reassessment proceedings by the AO and confirmed by learned CIT(A) ? 2. We were taken through the order of the Tribunal wherein the Tribunal has recorded a finding of fact that giving machinery on hire to the 2 third party tantamounts the user of the machinery for the purpose of business. It was so done in the relevant assessment year. The Tribunal has also recorded a finding of fact based on evidence that the income derived by the assessee from the hiring of such machinery is business income since the assessee has used it for business purpose. 3. The Tribunal has relied upon the judgment of the Apex Court in the case of CIT V/s. Maharashtra Apex Corporation Ltd. reported in 254 ITR 98 (SC) in support of its view. 4. Having seen the material available on record and the reasoning given by the Tribunal, no fault can be found in the view taken by the Tribunal. 5. In the result, appeal is dismissed with no order as to costs. (J.P.DEVADHAR,J.) (V.C.DAGA, J.)