Case: Commr.Of Income Tax,Gujarat Vs. Gupta Global Exim (P) Ltd

4. Briefly, the facts are as follows:The assessee is a private limited company engaged in the business of importing timber logs from abroad and selling them in India. During the previous year relevant to the Assessment Yearee had purchased trailers and loaders and put them to use on hire.The Assessment Officer (AO) took the view that the assessee was, during the relevant assessment year, in the business of timber trading and it is only occasionally that the trucks owned by the assessee were given out on hire to outside parties and, therefore, the assessee was not in the business of running the trucks on hire and, therefore, the assessee was not entitled to claim higher rate of depreciation at 40%. This finding of the AO was reversed by CIT(A) vide order dated 29th October, 2004. It was held by CIT(A) that transportation income of Rs.12,50,639/by was of running the subject vehicles on hire was an integral part of the assessees business and that its inclusion under the head `Business Income was not disputed even by the AO. This finding of CIT(A) was affirmed by the Tribunal. By the impugned judgment, the High Court has refused to interfere on the ground that the matter involved essentially questions of fact. Hence, this Civil Appeal by the Department.Generally, this Court does not interfere with the concurrent finding of facts recorded by the authorities below. However, we are of the view that in this case, a neat substantial question of law arose for determination which needed interpretation of the Depreciation Table given intax Rules, 1962. The said Table gives rates at which depreciation was admissible.ow clause III which reads asd bye used in a businessto use ony ofmotor lorriess used in aof running them onem 2(ii) of Item III, higher rate of depreciation is admissible on motorused in a businessof running them onhire. Therefore, the user of the same in the business of the assessee of transportation is the test.In the present case, none of the Authorities below (except the AO) has examined the matter by applying the above test. The AO has given his finding that the assessee was not in the business of transportation as he was only in the business of trading in timber logs. That, the burden was on the assessee to establish that it is the owner ofs and that itused the saids in the business of running

Reasoning:
In our view, the entire approach of CIT(A) was erroneous when he has stated that the transportation income of Rs.12,50,639/of running the subject vehicles on hireis an integral part of the appellants business and its inclusion in the head `business income is not disputed even by the AO. In our view, mere inclusion of Rs.12,50,639/in the Total Business Income is not the determinative factor for deciding whether trucks werehe assessee during the relevant year in a businessof running them onhire. In our view, the CIT(A) had erred in relying upon the accrual of income as a determinative factor for coming to the conclusion that truckswere used inbusiness of runninghat is relevant for consideration under2(ii) of Item III of Appendix I to theRules, 1962 is whether the assessee was in the business of hiring out his trucks in addition to his business of trading in timber. The order of assessment clearly indicates that the assessee was only in the business of trading in timber. We do not have the Returnshe assessee before us. We do not have the constitution of the assessee Company before us. There is no evidence to indicate that the assessee was in the business of hiring outor running them to earn business income. The entire inference is drawn by CIT(A) only on the footing that the AO had treated Rs.12,59,639/as part of Total Business Income which is not determinative of the above test, viz., whether the truckswere used inthe transportation business as