JUDGMENT : K.S. Jhaveri, J. 1. Though served, none appears for the respondent. 2. By way of this appeal under section 260A of the Income-tax Act, 1961, the revenue has challenged the order of the Income-tax Appellate Tribunal (hereinafter referred to as "the Tribunal") dated 11.9.2008 whereby the Tribunal has allowed the appeal partly by reversing the decision of the Commissioner of Income-tax (Appeals) which confirmed the order of the Assessing Officer not giving depreciation on trucks which were not used for the purpose of running of business. 3. While admitting the appeal, this court framed the following substantial questions of law: "(A) Whether the Appellate Tribunal is right in law and on facts in reversing the order passed by the CIT(A) and allowing process loss in Sun Flower Oil as claimed by the assessee? (B) Whether the Appellate Tribunal is right in law and on facts in reversing the order passed by the CIT(A) and holding that the assessee is entitled to depreciation at the rate of 40% on trucks given on hire?" 4. This matter was ordered to be heard with Tax Appeal No. 1414 of 2006. Regarding issue No. 1, Tax Appeal No. 1414 of 2006 came to be decided by this court vide judgment and order dated 20.7.2011. In paragraph Nos. 5 of the judgment, this court has observed as under: "5. With respect to question No. 1, at the outset, it needs to be noted that against the order of the tribunal in case of this very assessee respondent for the same issue, for the assessment year 1990-1991, the Revenue chose to approach this Court by preferring Tax Appeal No. 10/2001 where identical question of law, as raised in present tax appeal, was admitted and has been decided by this Court in favour of the assessee and against the Revenue in the following manner: "9. Quite apart from the above observations, we find that the tribunal had examined the materials on record which included the data of the turnover, Gross Profit rate and process loss for several years. It was found that year after year, the Gross Profit rate of the assessee company was increasing. Process loss was fluctuating between a minimum of 1.9% to maximum of 3.05%. It was found that year after year, the Gross Profit rate of the assessee company was increasing. Process loss was fluctuating between a minimum of 1.9% to maximum of 3.05%. The tribunal also observed that the product manufactured by assessee is refined cotton seed oil which is obtained from refining raw cotton seed oil which is in turn obtained from crushing cotton seed by ginning factories. Cotton seed is an agricultural commodity. The quality of cotton seed would certainly impact the raw cotton seed oil and consequently refined cotton seed oil. Quality of raw material would depend on several factors such as rainfall, quality of soil and other such factors. It was also noted that if the raw cotton seed oil is obtained from crushing of inferior quality of cotton seed, then the process loss was likely to be higher, but Gross Profit rate may go up since the assessee may have purchased the raw material at a cheaper rate. Tribunal also noted that there were instances where though process loss was high, Gross Profit rate was also high compared to other years. Tribunal noted contention of the assessee that the production recorded and maintained by the assessee were being checked and supervised by the Food and Civil Supply department of the Government. Periodic reports and returns were submitted by the assessee. No irregularities were noticed. Tribunal also relied on the report of one M/s. Vulcl laval, supplier of machinery to the assessee for manufacturing of refined cotton seed oil who had stated that process loss is typically found depending on the quality of raw cotton seed and functioning of the plant and would normally range between 2.65% to 4.20%. It can thus be seen that the tribunal based its findings on several factors and came to the conclusion that without any evidence or base the Assessing Officer could not have held that the process loss claimed by the assessee (in the present case at the rate of 3.05%) was inflated or excessive. 10. We are of the opinion that tribunal has considered the facts on record. Several relevant factors have been examined. These facts included uncertainty of the nature of business and fluctuating nature of process loss. By the very nature of things, the business of assessee depended on quality of cotton seed oil procured from the market. 10. We are of the opinion that tribunal has considered the facts on record. Several relevant factors have been examined. These facts included uncertainty of the nature of business and fluctuating nature of process loss. By the very nature of things, the business of assessee depended on quality of cotton seed oil procured from the market. Such cotton seed oil depending on quality of cotton produced being an agricultural commodity, naturally quality would depend on the seeds used, the technique employed by farmers for production, soil, rainfall, irrigation and so on. In absence of any additional material, only on basis of an isolated answer by one of the Directors of the company, the Assessing Officer could not have come to the conclusion that the process loss was artificially inflated. Tribunal had also relied on certificate given by the supplier of machine who stated that typically the process loss ranges between 2.65% to 4.20%. 11. In addition to above, we also notice that in earlier years, orders passed by the tribunal were accepted by the Revenue and not carried in appeal. 12. Sum total of above discussion is that we do not find that the decision of the tribunal requires reconsideration. Question No. (1) is therefore, answered against Revenue." 5. In the light of the above, issue No. 1 is answered in favour of the assessee and against the revenue. 6. So far as issued No. 2 is concerned, the learned counsel for the appellant has taken us through paragraph No. 6.5 of the assessment order at page No. 24 which is extracted hereinbelow: "The assessee has claimed depreciation at the rate of 40% on trucks purchased and used for the assessee's business at Rs. 9,86,084/-. Scrutiny of the details and explanation filed by the assessee shows that the trucks acquired by the assessee in the earlier years are not used in the business of running them on hire. The assessee is engaged in refining and processing of oil and not in any transport or running of the vehicles on hire business. The depreciation rules in this regard are very clear which lays down that the higher rate of depreciation at 40% is only available in the case of Motor vehicles and lorries are used in the business of running them on hire. The depreciation rules in this regard are very clear which lays down that the higher rate of depreciation at 40% is only available in the case of Motor vehicles and lorries are used in the business of running them on hire. In the case of the assessee motor truck were used for the purpose of assessee's business for transporting the edible oil from one place to another. The other transportation charges and hire charges shown under the head other income are only incidental to assessee's own business as received from one of sister concern of assessee M/s. Maruti Roadways. Therefore, the trucks are not being used in the business of hiring of vehicles to others. In the circumstances depreciation at higher rate is not allowable to the assessee and accordingly restricted to 25% of W.D.V. The disallowance on this score comes to Rs. 3,69,782/-. Depreciation is allowed at Rs. 6,16,302/- as against claim of Rs. 9,86,084/-". 7. The learned counsel for the appellant therefore contended that since the trucks were not being used in the business of hiring of vehicles to others and the same were being used for the purpose of assessee's business for transporting the edible oil from one place to another, the Assessing Officer has rightly restricted the claim of the assessee at 25% instead of 40% as claimed by the assessee. In the appeal filed by the assessee, the Commissioner of Income-tax (Appeals) discussed the issue in detail and confirmed the view taken by the Assessing Officer that since the trucks were not being used for hire purpose, the assessee is not entitled to claim depreciation at the rate of 40%. The Assessing Officer, therefore, rightly restrict the claim to 25%. 8. In further appeal before the Tribunal by the assessee, the Tribunal reversed the order of the Commissioner of Income-tax (Appeals) by making certain observations in paragraph No. 8, relevant portion of which is extracted below: "The learned D.R. Is also right in his submission that special rate of depreciation of 40% is admissible only when the trucks are used in the business of running them on hire. Since the assessee had given the trucks on hire to Maruti Roadways, the assessee is entitled to depreciation @ 40%. In this view of the matter, the order of the CIT(A) is reversed. Ground No. 2 is allowed." 9. Since the assessee had given the trucks on hire to Maruti Roadways, the assessee is entitled to depreciation @ 40%. In this view of the matter, the order of the CIT(A) is reversed. Ground No. 2 is allowed." 9. The learned counsel for the appellant has contended that the Tribunal has committed serious error in reversing the order of the Commissioner of Income-tax (Appeals) in view of the decision of the Apex Court in the case of Commissioner of Income-tax v. Gupta Global Exim P. Ltd. reported in, (2008) ITR 132(SC) wherein it was held as follows: "Setting aside the decision of the High Court and remanding the matter for fresh decision to the Commissioner (Appeals), that a neat question of law arose in the matter. Under item (2)(ii) of heading III in Appendix I to the Income-tax Rules, 1962, the higher rate was admissible on motor trucks used in a business of running them on hire. Therefore, the user of the same in the business of the assessee of transportation was the test. Merely, because the income from the letting of the trucks on hire was included in the business income the higher rate would not apply. The matter had to be decided on the question as to whether the assessee was in the business of running the trucks for hire." 10. The same view is taken by this court in the case of Bhagwati Appliance (now Dairyden Ltd.) v. Income-Tax Officer reported in, (2011) 337 ITR 286 (Guj) wherein at page No. 291 in paragraph No. 9 this court observed as follows: "The Supreme Court, in the case of CIT v. Gupta Global Exim P. Ltd., (2008) 305 ITR 132 (SC), on which reliance has been placed by the learned counsel for the revenue has, while construing the provisions of entry No. III of Appendix I to the Rules, held that under item (2)(ii) of heading III, the higher rate of depreciation is admissible on motor trucks used in a business of running them on hire, therefore, the user of the same in the business of the assessee of transportation is the test. The court, however, held that what is relevant for consideration under item (2)(ii) of heading III of Appendix I to the Rules is whether the assessee was in the business of hiring out his trucks in addition to his business of trading in timber. The court, however, held that what is relevant for consideration under item (2)(ii) of heading III of Appendix I to the Rules is whether the assessee was in the business of hiring out his trucks in addition to his business of trading in timber. The court observed in the facts of the said case that the order of assessment clearly indicates that the assessee was only in the business of trading in timber and there was no evidence to indicate that the assessee was in the business of hiring out motor lorries for running them to earn business income." 11. Keeping in mind the above decisions and taking into consideration the fact that the trucks were not used in the business of running them on hire, the Tribunal was not right in allowing depreciation at the rate of 40% by reversing the order of the Commissioner (Appeals). The depreciation on trucks ought to have been restricted to 25% as has been rightly granted by the Assessing Officer which has been confirmed by the Commissioner (Appeals). In that view of the matter, we answer question No. 2 in favour of the revenue. The appeal is disposed of accordingly.