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2013 (8) TMI 285 - HC - Income TaxNotice u/s 148 - Depreciation claimed on coal fired boiler building - Held that:- In the detailed questionnaire called for, vide notice issued under section 142(1) of the Act, the Assessing Officer had called for details of investment in fixed assets and not calculation as regards depreciation claimed by the petitioner - Thus, there is nothing on record to indicate that the Assessing Officer had called for details as regards depreciation claimed by the petitioner in respect of the fixed assets in general and the coal fire boiler building in particular or having raised any query in that regard - The only issue discussed therein pertains to disallowance under section 14A of the Act - So far as the assessment order is concerned, it does not reflect any application of mind by the Assessing Officer to the claim of depreciation on coal fire boiler building while framing the assessment - Since the reopening is within a period of four years from the end of the relevant assessment year, the requirement of the proviso to section 147 of the Act, viz., failure on the part of the assessee to disclose fully and truly all material facts for its assessment is not required to be fulfilled - Omission of the assessee to bring to the assessing authority's attention those particular items in the account books, or to particular portions of the documents which are relevant, will amount to "omission to disclose fully and truly all material facts necessary for his assessment - Assessing Officer, while framing the assessment under section 143(3) of the Act does not appear to have formed any opinion in regard to depreciation on coal fire boiler building - It was for the petitioner to bring to the notice of the Assessing Officer that it was claiming depreciation in respect thereof as under the heading "plant and machinery" and not as building. The petitioner having failed to do so cannot now contend that the assessment is sought to be reopened on a mere change of opinion - Following decisions of Malegaon Electricity Co. P. Ltd. v. CIT [1970 (8) TMI 8 - SUPREME Court] and Calcutta Discount Co. Ltd. v. ITO [1960 (11) TMI 8 - SUPREME Court] - Decided against assessee. The court while considering a challenge to the reopening of assessment can always examine the existence of the belief but the sufficiency of the reasons for the belief cannot be investigated by the court. On the facts emerging from the record, the court is of the view that there is sufficient material on record for the Assessing Officer to form a belief as regards escapement of income from assessment in the year under consideration in relation to the claim of depreciation in respect of building of coal fire boiler. - Decided against assessee. Notice u/s 148 - Carry forward of depreciation - Held that:- If the reopening is sustainable on one issue, even if on the other issue the exercise of power under section 147 of the Act is not justified, it would not make render the assumption of jurisdiction under section 147 of the Act invalid - Decided against assessee.
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