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2008 (1) TMI 647 - ITAT MUMBAIRe-opening of assessment u/s 147 - issuance of notice u/s 148 - on the basis of change of opinion - Income escaping assessment - Survey - Depreciation on SAPT building as well as maintenance - HELD THAT:- The basis for forming an opinion that income has escaped assessment is the outcome of survey carried out at the business premises of the assessee where according to the AO it revealed that SAPT building was not used for the purpose of business. On the basis of such report the ld. Assessing Officer arrived at a conclusion that income has escaped assessment therefore the information which has come to his possession is the basis for forming a prima facie belief about escapement of income. The assessments have not been reopened merely on the basis of change of opinion i.e., merely on the basis of re-appreciation of the material already possessed by the Assessing Officer. In view of the above discussion we do not find any merit in the first grievance of the assessee. The reopening of the assessment is upheld in both the years. Disallowance of depreciation on SAPT building as well as maintenance - Incurred lift expenditure - survey u/s 133A - building not used for the purpose of the business - HELD THAT:- If we weigh the material produce by the assessee viz-a-viz the solitary statement of the Estate Manager elicited by the authority during the course of survey, then scale would tilt in favour of the assessee because the statement was recorded under sub-section (3)(iii) of section 133A without administering the oath to the Estate Manager. This is just an information which required corroboration for deciding an issue against the assessee. AO has not brought any corroborative piece of evidence in support of this information. In the past depreciation was granted to the assessee. Orders for assessment years 1993-94 to 1995-96 have been brought to our notice exhibiting this fact. AO failed to establish that building was not used for the purpose of business. Apart from all these things, even if we take the statement of the Estate Manager as a Gospel Truth then also the assessee had demonstrated that it has not abandoned the building totally. It’s staff was there and it was using the building partially. As far as the 2nd limb of argument is concerned the building was the part of the assessee’s block of assets - Tribunal in the case of Packwell Printers[1996 (5) TMI 112 - ITAT JABALPUR] has considered a similar issue and order of the Tribunal was subsequently followed in the case of Natco Exports [2002 (6) TMI 168 - ITAT HYDERABAD-A], etc. According to these decisions once the asset was part of block of asset and depreciation was granted on that block it cannot be denied in the subsequent year on the ground that one of the asset was not used by the assessee in some of the years. The user of the assets has to apply upon the block as a whole instead of an individual asset. Contrary to these decision no other decision was brought to our notice by the ld. DR. Thus, we allow both these grounds and direct the AO to grant depreciation as well as other expenses i.e., maintenance and lift charges on SAPT building. In the result the appeal of the assessee are partly allowed.
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