2023 (1) TMI 431 - HC - Income Tax
Reopening of assessment u/s 147 - income exigible to tax for the said assessment year has escaped assessment - Reopening beyond the period of four years from the end of relevant assessment years - depreciation claim of the licence fee paid by the assessee - HELD THAT:- From a reading of the reasons for reopening, it can be stated that the petitioner was entitled to claim deduction u/s 35ABB of the Act but it has not been specifically stated in the reasons that the petitioner was not entitled to claim depreciation @ 25% in terms of section 32 on the amount capitalized as “intangible assets”. Even otherwise, it does appear to us that the issue with regard to claim of depreciation had been gone into by the AO and notwithstanding the fact that in the order of assessment, there was no specific discussion as regards this particular claim, yet, considering the ratio of the judgments referred it must be presumed that the claim was considered and only then allowed.
In the backdrop of the facts and the law stated in Jindal Photo Films Ltd. [1998 (5) TMI 20 - DELHI HIGH COURT] even in the present case, between the date of the order of assessment sought to be reopened and the date of forming of opinion by the Assessing Officer, nothing new has happened. Neither is there any new information received nor is a reference made to any new material on record. The Assessing Officer simply has accorded a fresh consideration and come to a conclusion that the assessee ought to have claimed benefit of deduction under section 35ABB which would have resulted in reducing the allowance under section 32 - In the absence of any tangible material, the present case is nothing but a case of change of opinion and thus does not satisfy the jurisdictional foundation under section 147 of the Act.
We have no hesitation in holding that the impugned notice under section 148 of the Act and the consequent order disposing off the objections raised for reopening of the assessment, are unsustainable and accordingly set aside the same.