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2015 (7) TMI 801 - AT - Income TaxValidity of reopening of assessment - assessee set off unabsorbed depreciation for the AY.1994-95 amounting to ₹ 25.81 crores in the AY.2004-05 - Held that:- There is no doubt the reassessment notice was issued after four years for AY under appeal, that the provisions of proviso to section 147 were applicable to the case,that the AO had not mentioned that the failure of the assessee to disclose the relevant and material facts led to under assessment or escapement of income for the assessment year under consideration.From the reasons recorded the belief of assessee in failure of the assessee is not emerging.The FAA has also not dealt with the issue at all.The operative part of this order reads as under: In view of the foregoing,I find that the issuance of notices u/s.148 by the AO is in order and no interference is therefore called for.This ground of appeal is accordingly, dismissed. Nowhere he had discussed as to how the facts of the cases relied upon by him were applicable to the facts of the case under appeal.In these circumstances,in our opinion,the order of the FAA is not a speaking order.He had not dealt with the objections raised by the assessee.As the basis for endorsing the reopening after four years is missing,so,we are reversing his order.We hold that the order passed by the AO and upheld by the FAA was not a valid order,as the twin conditions of reopening of the matter,after a period of four years,were missing.Effective ground of appeal filed by the assessee is decided in its favour. Directors remuneration for making disallowance u/s.14 A - Held that:- While completing the original assessment,the AO had called for information about commission payment and had considered it while computing the disallowance to be made under section 14A of the Act.At that time if he did not invoke the provisions of section 36(1)(ii)then it has to be presumed that he had applied his mind and had taken a conscious decision about the disputed item.It is not the case of the AO or the FAA that material was not available at the time of the original assessment.The AO has reviewed his original order and in our opinion in the reassessment proceedings it is not permissible. See M/s. OHM Stock Brokers Pvt. Ltd. Versus Commissioner of Income Tax-4, Mumbai and another [2013 (3) TMI 200 - BOMBAY HIGH COURT] - Decided in favour of assessee.
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