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2017 (2) TMI 493 - HC - Income TaxInitiation of reassessment proceeding under section 147 - attribution of income from collection of parking fee from the trucks - maintainability of proceeding under section 260A - Held that:- The reason to believe to conclude that tax has escaped assessment is not at all reflected, in the order passed by the Assessing Officer. The Assessing Officer has not said that income from collection of parking fee from the trucks is attributable to building and not to the parking facility provided for the trucks. Even if the order recorded by the Assessing Officer on April 10, 2007 is liberally construed, we do not find the requisite material or the nexus on the basis of which, the reasonable belief is reached, for ordering the reassessment proceeding. Therefore in our understanding, the action initiated against the assessee under section 147/148 appears to be without any jurisdiction and it is declared so accordingly. The jurisdictional question of law arises from the fact found by the Income-tax authority, i.e., earning from parking fee collected from truck terminus and since tax liability of the assessee is dependent on this very issue, the contention raised by the learned counsel for the Revenue that this question cannot be examined by us in this proceeding under section 260A of the Income-tax Act is rejected. The ratio in National Thermal Power Co. Ltd. v. CIT reported in [1996 (12) TMI 7 - SUPREME Court] supports our decision. Substantial questions of law are answered in favour of the assessee and we further declare that the Gotanagar truck terminus is a plant and not building, for the purpose of claiming depreciation under section 32 read with section 43 of the Income-tax Act. Consequently the assessee is held entitled to depreciation at the rate of 25 per cent. as prescribed for plant and not at 10 per cent., as applicable for building. - Decided against revenue
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