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2014 (5) TMI 481 - GUJARAT HIGH COURTValidity of notice u/s 148 of the Act – Reopening of assessment – Change of opinion - Depreciation not claimed in the current year while set off of unabsorbed business loss - Held that:- The original assessment was not made after scrutiny - It was a case of acceptance of return u/s 143(1) of the Act – Relying upon Assistant Commissioner of Income-Tax Versus Rajesh Jhaveri Stock Brokers P. Limited [2007 (5) TMI 197 - SUPREME Court] - In any case, there would be no case of change of opinion since the AO could not have been stated to have formed any opinion previously - reopening is resorted to u/s 147 of the Act and the basic requirement of the AO having reason to believe that income chargeable to tax had escaped assessment must be fulfilled. The sole ground on which the AO desires to reopen the assessment is that the assessee did not claim depreciation of the current year while seeking set off of the unabsorbed business loss of earlier years – according to the AO, would enable the assessee to claim depreciation selectively and prolong the claim beyond eight years - what the assessee had done was well within thin the legal framework - It was open for the assessee not to claim depreciation till the amendment was made by explanation 5 in section 32(1) of the Act which had the effect only from 1.4.2002 - the very belief of the AO that income chargeable to tax had escaped assessment lacks validity – the notices are set aside - Decided in favour of Assessee.
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