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2023 (2) TMI 713 - BOMBAY HIGH COURTReopening of assessment u/s 147 - Reasons to belive - change of opinion - Reopening within a period of four years from the end of the relevant assessment year - disallowance as regards the claim of the depreciation - whether there was any tangible material with the AO justifying reopening of the assessment or can it be said to be a case of ‘review’ and ‘change of opinion’ by the said Officer? - HELD THAT:- As clear from the record that the AO did enquire into the claim of depreciation and had called for certain details with regard to the assets written of, which were supplied with the Assessing Officer, and only then, the AO passed the order of assessment under section 143(3) of the Act and did not make any disallowance in regard to the claim of depreciation. All the material facts, therefore, were certainly before the AO and notwithstanding the fact that the order of assessment does not specifically discuss the issue, yet must be deemed to have been considered and allowed. As seen from the reasons recorded that there was no new material which had come to the notice of the Assessing Officer and the entire reference in the reasons recorded is only to the material on record. In the absence of any new tangible material available with the AO and in view of the fact that there is a general presumption that an order of assessment u/s 143(3) has been passed after proper application of mind and considering the fact that in the present case, the AO had sought clarification with regard to the assets which had been written off, details whereof were submitted during the course of the proceedings, it certainly goes to show that the issue with regard to depreciation had been gone into by the said AO without making any disallowance as regards the claim of the depreciation. We have no hesitation in holding that the reassessment proceedings were nothing but a case of ‘change of opinion’, which does not comply with the jurisdictional foundation under section 147 - Decided in favour of assessee.
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