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2018 (12) TMI 513 - AT - Income TaxReopening of assessment u/s 148 - reopening on the basis of audit party - question of law raised by audit party - Held that:- The issue of law pointed out by the Audit objection was relatable to the set off of unabsorbed depreciation relating to the Assessment Year 1998-99, the set off of which to the extent of ₹ 3,38,521/- stands allowed against the income of year in the question and set off of ₹ 12,10,970/- was allowed in the preceding Assessment Year and the balance in subsequent Assessment Year. According to the audit party the unabsorbed depreciation for Assessment Year 1998-99 was eligible for set off of within a period of 8 years vide amendment made in law. In support of this fact assessee submitted before the CIT(A) the text of the audit objection. Notice u/s 147/148 in the assessee’s case was issued on the basis of point of law raised. This by itself exposes the invalidity of the action of issuance of notice u/s 148 of the Act. It is well established principle of law that resort to proceedings u/s 147 r.w.s 148 cannot be had to on a question of law raised by audit party. This law has been laid down in the case of CIT vs. Lucas TVS Ltd. [2000 (12) TMI 102 - SUPREME COURT], wherein held an audit opinion in regard to the application or interpretation of law cannot be treated as information for reopening the assessment under s. 147(b) In view of the above position in law proceedings set in motion with the issuance of notice u/s 148 r.w.s. 147 on the basis of audit query are not sustainable under law in the facts and circumstances of the case and as such the impugned assessment order is not maintainable and sustainable under law hence on this ground alone the assessment order deserves to be vacated.- decided in favour of assessee.
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