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2017 (7) TMI 608 - ITAT CHANDIGARHRe-opening of the assessment u/s 148 - dismissing the claim of assessee on account of depreciation claimed on warehouse building @ 25% - Held that:- The assessee was not able to explain as to how the warehouse was plant and machinery in the case of the assessee. The assessee, merely claimed before the authorities below that the apparatus of the businessman by which he is carrying on business, may be termed as ‘Plant’. However, the authorities below have noted that nature of business of the assessee was running of a Container Freight Station which is an infrastructure facility only. Therefore, it was correctly held to be ‘building’ only. Even during the course of arguments, nothing is explained as to how warehouse in the nature of business of the assessee was plant and machinery so as to claim higher depreciation. Merely because in earlier year, warehouse was forming part of the block of asset on which no opinion have been expressed by the authorities below on merit, would not entitle the assessee to claim higher depreciation. In the absence of any evidence or material on record to prove as to how warehouse is plant and machinery in the case of the assessee, re-opening of the assessment is wholly justified in the matter and addition on merit have also been correctly made. Deemed dividend under section 2(22)(e) - Held that:- There is no reason to disbelieve explanation of the assessee. Merely because licence deed was on plain paper and not registered, would not be ground to reject contention of the assessee. The factual findings shall have to be given by the authorities below whether the amount received was ‘security’ from this concern and whether assessee was a shareholder in the company from whom security have been received. In case of negative factual findings on facts, provisions of Section 2(22)(e) would not be attracted in the case of the assessee. Both the issues therefore, require re consideration at the level of the Assessing Officer. Set aside the orders of authorities below and restore this issue to the file of Assessing Officer with direction to re-decide this issue as per law in the light of judgement in the case of M/s Hotel Hilltop (2008 (3) TMI 310 - RAJASTHAN HIGH COURT). The Assessing Officer shall give reasonable sufficient opportunity of being heard to the assessee. This ground is allowed for statistical purposes.
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