1 itxl1169.06 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL(L) NO.1169 OF 2006 The Commissioner of Income Tax-V, Pune-411 044. ....Appellant Vs. Kinetic Motors Co. Ltd., Pune-411 012. ....Respondent. Mr. Vimal Gupta, advocate for appellant. Mr. S.N.Inamdar, advocate for respondent. CORAM:- J.P.DEVADHAR AND MRS.MRIDULA BHATKAR, JJ. DATED:- FEBRUARY 8, 2011. P.C. 1. Four questions of law are raised by the Revenue in this appeal, which read as follows: “(i) On the facts and circumstances of the case, and in law the Hon’ble ITAT erred in allowing the depreciation @ 40% on trucks owned by the assessee Company, who is not in the business of running them on hire. (ii) On the facts and circumstances of the case, and in law the Hon’ble ITAT ought to have followed the ratio of decision of Hon’ble Rajasthan High Court in the case of CIT Vs. Sardar Stones 2 itxl1169.06 215 ITR 350. (iii) On the facts and circumstances of the case, and in law the Hon’ble Tribunal erred in holding that excise duty and sales tax collected by the assessee to be excluded from the Total turnover for the purpose of computation of deduction u/s. 80 HHC of the I.T.Act, without appreciating the fact that the Hon. Supreme Court in the following cases :- (a) Chowringhee Sales Bureau Pvt.Ltd. 87 ITR 542, (b) Punjab Distilling Industries Ltd. 35 ITR 519, (c) Sinclair Muuray & Co. Pvt.Ltd. 97 ITR 615, (d) Bazpur Co-operative Sugar Factory Ltd. 172 ITR 321. and the Hon. Bombay High Court in the case of Hindustan Petroleum Corporation Ltd.[143 ITR 318] held that the amount of excise duty and/or sales tax collected by the assessee form part of the sale price and hence gets naturally included in the turnover. (iv) On the facts and circumstances of the case and in law the ITAT has erred in allowing the payment of royalty paid to Honda Motors Co. Ltd. for technical knowhow.” 3. As regards first question is concerned, the Tribunal has recorded a finding of fact that the assessee had been giving its trucks to other parties to transport assessee’s goods as well as goods belonging to some other parties. The Tribunal has further recorded a finding of fact that where the consignment belonging to others were transported by these trucks, the hirer had to pay higher licence fee to assessee. These facts have not been controverted. Accordingly, the Tribunal has come to the finding of fact that the assessee is in the business of running trucks on hire. No fault can be found with the aforesaid finding of fact recorded 3 itxl1169.06 by the Tribunal. Accordingly, the first question raised by the Revenue cannot be entertained. 3. As regards second question of law is concerned, Counsel for the parties state that the said question is answered against the Revenue by the decision of the Apex Court in the case of CIT v/s. Laxmi Machine Works reported in 290 ITR 663. Hence, this question also cannot be entertained. 4. As regards the question Nos. 3 and 4 are concerned, Counsel for the parties state that similar question raised in assessee’s own case being ITXA No. 1240 of 2000 has been dismissed by this Court on 2nd May, 2009. In this view of the matter, question Nos. 3 and 4 cannot be entertained. 5. Accordingly, the Appeal is dismissed with no order as to cost. (MRS.MRIDULA BHATKAR, J.) (J.P.DEVADHAR, J.)