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Rajasthan H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled to depreciation at 40 per cent and not 30 per cent on the trucks used by it in its business ?

Rajasthan H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled to depreciation at 40 per cent and not 30 per cent on the trucks used by it in its business ?

Sec. 256(2)

High Court Of Rajasthan : Jaipur Bench

CIT vs. Sardar Stones

Section 256(2)

Dr. AR. Lakshmanan, C.J. & Rajesh Balia, J.

IT Ref. No. 68 of 1989

12th October, 2001

Counsel appeared

J.K. Singhi, for the Revenue : None, for the Assessee

JUDGMENT

RAJESH BALIA, J. :

The respondent-assessee is engaged in the business of polishing stones and other masonary stone works. The trucks in question are mostly used in his own business in transportation of stones. On these trucks, the assessee has claimed depreciation @ 40 per cent whereas the ITO has allowed depreciation @ 30 per cent. On appeal, the CIT(A) relying on a decision of the Tribunal in Manjeet Stones Company vs. ITO set aside the order of the AO and upheld the contention of the assessee which order was further confirmed by the Tribunal vide its order dt. 9th April, 1987.

The decisions of the CIT(A) and the Tribunal both are founded on the Tribunal’s earlier decision in Manjeet Stone Company’s case (supra). In view of its own earlier decision, the Tribunal has rejected the application under s. 256(1) of the Act for referring the following question of law arising out of its appellate order to this Court for its opinion : “Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee is entitled to depreciation at 40 per cent and not 30 per cent on the trucks used by it in its business ?”

2. It has been brought to our notice by the learned counsel for the Revenue that like question has been made a subject-matter of reference in CIT vs. Manjeet Singh (1991) 91 CTR (Raj) 239 : (1991) 190 ITR 183 (Raj). The said question has been ultimately answered in favour of the Revenue and against the assessee. In these circumstances, it is apparent that the order of the Tribunal rejecting the application under s. 256 of the Act is patently erroneous inasmuch as question of law do arise out of the Tribunal’s order.

Accordingly, we allow this application and direct the Tribunal to state the case and refer the aforesaid question of law to this Court for its opinion. No order as to costs.

[Citation : 257 ITR 788 ]

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