Commissioner of Income Tax, Jaipur vs Sardar Stones

Balia, J.

(1). The respondent assessee is engaged in the business of polishing stones and other massionary 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% whereas the Income Tax Officer has allowed depreciation @ 30%. On appeal, the Commissioner of Income Tax relying on a decision of the Income Tax Appellate Tribunal in Manjeet Stones Company v. I.T.O. set aside the order of the Assessing Officer and upheld the contention of the assessee, which order was further confirmed by the Tribunal vide its order dated 9.4.1987.

(2). The decision of the Commissioner and the Tribunal both are founded on the Tribunal''s earlier decision in M/s. Manjeet Stone Compay''s case. In view of its own earlier decision, the Tribunal has rejected the application u/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% and not 30% on the trucks by it in its business?"

(3). 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 v. Manjeet Singh (1). The said question has been ultimately answered in favour of the Revenue and against the assessee.

(4). In these circumstances, it is apparent that the order of the Tribunal rejecting the application u/s 256 of the Act is patently erroneous inasmuch as question of law do arise out of the Tribunal''s order.

(5). 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.