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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.

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.

(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.