V. K. SINGHAL, J. :
The Tribunal has referred the following question of law arising out of its order dt. 26th Feb., 1986 in respect of the asst. yrs. 1982-83 and 1983-84 of Abdul Karim Stone Contractor and for 1982-83 in the case of M/s Raj Floring Stone Co. and M/s Agarwal Flooring Stone Com. Kota :
"Whether on the facts and in the circumstances of the case, the Tribunal was justified in directing the ITO to allow extra depreciation and investment allowance for dumpers which claim had not been put up by the assessees before the ITO but was for the first time taken by them before the CIT in proceedings under s. 263 of the IT Act ?" All the three matters are being disposed of by this common order as the question involved is common.
2. The dispute in the present matter relates to the claim for depreciation on dumpers owned by the assessee. They derived income from owning of mines, extracting stones and selling them. The ITO treated the dumpers as road vehicles and allowed depreciation at the rate of 40%. The CIT invoked the powers under s. 263 as he was of the opinion that the dumpers are vehicular mechanism specially equipped with a tilting device for unloading. For computing depreciation allowance in case of the assessee, the relevant provision was found under item 8 or 9 of table III of part I of the Appendix-I to the IT Rules and 30% depreciation was applicable. It was contended by the assessee before the CIT that dumpers are used to remove the over-burden in the mining area from one point to another and, therefore, they were entitled to initial depreciation and investment allowance under s. 32(1)(iia) and 32A of the IT Act. The contention of the assessee was rejected on the ground that such a claim was never made before the ITO.
3. Against the order of the CIT, an appeal was preferred before the Tribunal wherein it was pressed that the depreciation allowance should be given on new machinery under s. 32(1)(iia). According to the Tribunal since the CIT has found that dumpers cannot be equated with road transport vehicles the assessee was entitled to revise the claim particularly when the matter was taken up before the CIT.
4. Before us learned counsel for the assessee could not satisfy the Court so far as the claim for investment allowance is concerned. No benefit can be given for that.
5. In the proceedings under s. 263 before the CIT the assessee contended that the dumpers are earth moving machineries and therefore depreciation should be given as allowance to mining machinery under s. 32(1)(iia) and s. 32A since they were new and purchased during the year. This request was turned down on the ground that the claim was not initially made and the ITO was directed to allow depreciation allowance at the rate of 30% on dumpers as mining machinery. Before the Tribunal it was pleaded that the dumpers being mining machinery the assessee should have been permitted to revise his claim. The ITO was directed to consider the claim for extra-depreciation and investment allowance.
6. It is not in dispute that the dumpers were purchased during the year and were new. The question arises whether the extra-depreciation can be allowed when it was not claimed in the return submitted by the assessee. The matter clinches on the point whether the assessee is entitled to claim deduction in the proceedings under s. 263 when it was not claimed in the return. Reliance has been placed on the decision of this Court in the case of CIT vs. Rangnath Bangur (1984) 149 ITR 487 (Raj), wherein it was observed that once a re-assessment proceeding is initiated, the original order of assessment is set aside or ceases to be operative, the finality of such an assessment order is wiped out and a fresh order of assessment would take the place of and completely substitute the initial order of assessment. It is therefore clear that when reassessment proceedings are taken the former assessment is completely wiped out and the entire assessment is reopened, and the total income of the assessee is determined afresh.
7. Reliance has also been placed on the case of CIT vs. Indian Rare Earth Ltd. (1990) 181 ITR 22 (Bom) wherein it was observed that the assessing authority has jurisdiction to complete the entire assessment de novo and in reassessment proceedings an assessee is entitled to make a claim for deduction even though such was not made during the course of the original assessment proceedings. Item No. 8 and 9 of table 3D of the appendix of the IT Rules is as under :
(8) Mines and quarries portable underground machinery and earthmoving machinery used in open cost mining (NESA).
(9) Motor buses, and motor lorries other than those used in a business of running them on hire (NESA)."
8. The assessee claimed depreciation at 40% under item No. 1A of table 3E which is as under -
"1A. Motor buses, motor lorries and motor taxis used in a business of running on hire (NESA)."
While interpreting the above entries it was found by the CIT that dumpers did not fall in the category of motor vehicles and the assessee was not using the dumpers in the business running for hire. The dumper cannot be equated with road transport vehicle. It was on the basis of this finding given by the CIT that it was found that 40% depreciation allowance was not allowable, but it was allowable only 30%. It is also an admitted fact that in the original return filed by the assessee or even before the completion of assessment no claim at all was made for extra-depreciation. The CIT also found that besides not making the claim the reserve of 75% was also not made and therefore the initial allowance in respect of the dumpers cannot be allowed.
9. In Bolani Ores Ltd. vs. State of Orissa AIR 1975 SC 17 the provisions of Motor Vehicles Act, 1939 and subsequent amendments by Motor Vehicles Amendment Act, 1956 were taken into consideration. It was considered that before the amendment a motor vehicle though a motor vehicle within the meaning of the first part of the definition is nonetheless not so, because of the specified user, i.e. if it is used solely upon the premises of the owner. After the amendment in 1956, though a motor vehicle may be adapted for use upon roads nonetheless in order to be taken out of the category of the definition it had to be further adapted, namely it should be a vehicle of a special type adapted for use only in a factory or in any other enclosed premises. The dumpers and rockers were held motor vehicles. Subsequently, in Central Coal Fields Ltd. vs. State of Orissa AIR 1992 SC 1371 it was observed that mere fact that dumpers are required at places to run at a particular speed is not to detract from the position otherwise clear that they are adapted for use on roads. The very nature of these vehicles make it clear that they are not manufactured or adapted for use only in factories or enclosed premises. The mere fact that the dumpers or rockers are heavy and cannot move on the roads without damaging them is not to say that they are not suitable for use on roads. In Union of India vs. Chowgule & Co. Pvt. Ltd. AIR 1992 SC 1376 it was observed that the mere fact that dumpers are used solely on the premises of the owner, or that they were in closed premises, or permission of the authorities was needed to move them from one place to another, or that they are not intended to be used or are incapable of being used for general purposes, or that they have an unladen and laden capacity depending on their weight and size, is of no consequence, when it was not pleaded that they are vehicles as of a special type adapted for use only in a factory or in any other enclosed premises.
10. By the Motor Vehicles Act, 1988 the definition of motor vehicle has been changed than provided under the Motor Vehicles Act, 1939 and the words or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding thirty five cubic centimetres were added in cl. (28) of s. 2 of the said Act. The question whether the dumpers fall within the category of motor vehicle or mining machinery is not in dispute and therefore the matter is not being further considered.
11. The question is that if an item is considered falling in a particular entry for the purpose of depreciation or investment allowance etc., and subsequently the Department comes to the conclusion that it falls within the different entry, in such a situation whether it can be said that the assessee has not initially claimed the depreciation or investment allowance while submitting the return and therefore he is disentitled to claim and the power under s. 263 has been exercised by the CIT according to which the order passed by the ITO was prejudicial to the interest of the Revenue. For whatever reason a direction has been given that the assessee is entitled to claim depreciation at the rate of 30% and not 40% and the claim for depreciation and investment allowance could have been raised before the CIT who could have directed the assessing authority to take into consideration the claim so made on the basis of evidence on record. In the case of CIT vs. Sun Engineering Works P. Ltd. (1992) 198 ITR 297 (SC) in the matter of proceedings under s. 147, it was held by the apex Court that the ITO may bring to charge items of income which had escaped assessment other than or in addition to the item or items which led to the issuance of a notice under s. 148 and where reassessment is made under s. 147, in respect of income which had escaped tax, the ITOs jurisdiction is confined only to such income which has escaped tax or has been under assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the underassessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The ITO cannot make an order of reassessment inconsistent with the original order of assessment in respect of matters which are not the subject matter of proceedings under s. 147. An assessee cannot resist reassessment proceedings validly initiated under this section merely by showing that the other income which had been assessed originally was at too high a figure except in cases under s. 152(2).
12. The provisions of s. 263 confer power of revision on the CIT and the order could be passed subject to the condition that the CIT is satisfied that the order passed by the assessing authority is erroneous in so far as it is prejudicial to the interests of the Revenue and such an order may be passed after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary.
In the matter of CIT vs. Mahalaxmi Textile Mills Ltd. (1967) 66 ITR 710 (SC) the powers of the Tribunal were considered with reference to the words as it thinks fit used in s. 33(4) of the IT Act 1922 and it was observed by the apex Court that there is nothing in the IT Act which restricts the Tribunal to the determination of questions raised before the Departmental authorities. All the questions whether of law or of fact, which relate to the assessment of the assessee may be raised before the Tribunal. If for reasons recorded by the Departmental authorities in respect of a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the Departmental authorities and the Tribunal and indeed they would be under a duty to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him.
13. In the present matter the relief of extra-depreciation under s. 32(1)(ii)(a) was not initially claimed as the contention of the assessee that the dumpers are vehicles was accepted by the assessing authority. If in the revisional jurisdiction under s. 263 it was considered that the dumpers are not vehicles and are machinery then the deductions which were available under the Act could be validly claimed by the assessee including the initial depreciation. If an item is considered for the purpose of depreciation etc. falling in a particular entry by the assessing authority and subsequently the CIT finds that the item does not fall in that entry but falls under different entry then the consequential benefit, even if not claimed, has to be given by the ITO. There was no occasion for the assessee to have claimed the deduction alternatively when his first contention was duly accepted. The claim of the investment allowance has not been pressed and was not legally permissible because before claiming the deduction it was necessary for the assessee to create a reserve of 75% in accordance with the provisions of s. 32A. In our opinion, therefore, the Tribunal was justified in directing the ITO to allow extra-depreciation and investment allowance for dumpers which claim had not been put up by the assessees before the ITO but was for the first time taken by them before the CIT in proceedings under s. 263 of the IT Act.
14. Consequently, reference is answered in favour of the assessee and against the Revenue. No order as to costs.