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2020 (1) TMI 923 - HC - Income TaxReopening of assessment u/s 147 - change of opinion - Section 43A applicability - HELD THAT:- In the reasons there is reference to the Section 43A of the Act and the claim of the Petitioner is based on the same. In our prima facie reading of the reasons the fact of the operations have come to standstill and the properties were disposed of and the claim of depreciation being incorrect, is a matter of narration. Thereafter narrating so, the foundation of the reasons, prima facie, indicate that foundation is the allegation that the Petitioner has not paid the liability. This prima facie opinion of ours is borne out by the order passed by the AO disposing of the objections. The Petitioner had not referred to the so called other two grounds for reopening. AO has not stated that the two grounds for reopening have gone unanswered. It is the contention of the learned counsel for the Respondent that it is not necessary. But at the prima facie stage, we note the way parties have understood and acted on the Reason, which would be otherwise in normal course of conduct. Change of opinion - As regards application of Section 43A and the second explanation thereto, a query was raised by the Assessing Officer vide notice under Section 142(1) wherein the Assessing Officer stated that on perusal of depreciation charge was seen during the year and the information was called for. This information was supplied by the Petitioner by communication dated 22 November 2017 wherein note on the business activities was given. The factum of ICICI bank giving loan for purchase of rigs was mentioned. The query regarding depreciation charge was answered by Petitioner by giving the necessary details. The notice under Section 142(1) dated 30 November 2017 called upon the Petitioner to show cause as to why the claim of depreciation should not be disallowed. There was a debate at the bar whether the response of the Petitioner giving the explanation dated 25 November 2017 could be considered as a response to the show cause notice. According to the learned counsel for the Respondent the notice calling upon the Petitioner to show cause was dated 30 November 2017 and the letter dated 25 November 2017 could not be considered as a response. This letter was inwarded on 4 December 2017 and the notice dated 30 November 2017 called upon the Petitioner to submit reply by 5 December 2017. This response of the Petitioner was with the Assessing Officer prior to the dates stipulated. Therefore, prima facie, a specific query was raised by the Assessing Officer, and material was produced in response to the specific query by the Petitioner. When AO consciously considered the claim for deduction which evident from the questions raised during the regular assessment proceedings, it would be evidence of the fact that the Assessing Officer had occasion to apply his mind and had taken a view. In such circumstances re-opening would be a mere change of opinion, which is not permitted. - Decided in favour of assessee.
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