TMI Blog2011 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 24-2-2011 - MS. HARSHA DEVANI AND H.B. ANTANI, JJ. J.P. Shah for the Petitioner. M.R. Bhatt and Mrs. Mauna M. Bhatt for the Respondent. JUDGMENT Ms. Harsha Devani, J. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 8-3-2001 issued under section 148 of the Income-tax Act, 1961 (the Act) reopening the petitioner s assessment for assessment year 1994-95. 2. The petitioner is a Public Limited Company. The facts of the case as appearing in the petition are that the petitioner has been using boilers for the last several years and claimed 100 per cent depreciation in respect thereof in the year in which the petitioner for the first time install ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing depreciation of Rs. 68,82,360 on boilers. The petitioner gave its reply thereto. Subsequently, after a period of about two years, the Assessing Officer issued another notice under section 154 of the Act, inter alia, stating that excess depreciation of Rs. 35,93,976 in respect of other machinery parts and boilers was required to be withdrawn. The petitioner gave its reply to the said notice. Thereafter, vide the impugned notice, the assessment of the petitioner is sought to be reopened for the year 1994-95. 3. Mr. J.P. Shah, learned advocate appearing on behalf of the petitioner submitted that the assessment year under consideration is 1994-95, whereas the notice under section 148 of the Act has been issued on 8-3-2001, which is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. It was submitted that though in the concluding paragraph, the Assessing Officer has recorded that there is omission on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, it does not spell out any omission. Referring to the reasons, it was submitted that the Assessing Officer has picked up everything from the record and has merely on disagreement with the predecessor, come to the conclusion that the predecessor has committed mistake which has resulted into an under-assessment. It was submitted that in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment, the assumption of jurisdiction on the part of the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciation. It was urged that the assessee has, therefore, not fully and truly disclosed the material details regarding claiming 100 per cent depreciation on parts and accessories of boiler and therefore, the assessment was reopened only in connection with the allowability of 100 per cent depreciation on part and accessories of the boilers and not relevant to allowability of depreciation on boilers for which there is no dispute. 5. Referring to the decision of the Supreme Court in the case of Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191, it was submitted that the Court has held that the omission on the part of the assessee to bring to the Assessing authority s attention those particular items in the account books or the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso thereto are required to be satisfied. For the purpose of reopening the assessment, the Assessing Officer is, therefore, required to record satisfaction firstly to the effect that there is escapement of income and secondly, that such escapement is by reason of the failure on the part of the petitioner to file a return under section 139 or in response to a notice under section 148, or (ii) to disclose fully and truly all material facts necessary for its assessment for that assessment year. In the present case, the first condition admittedly does not exist. In the circumstances, for the purpose of assumption of jurisdiction, the Assessing Officer is required to record satisfaction that the income chargeable to tax has escaped assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears that in effect and substance, no satisfaction has been recorded by the Assessing Officer as regards failure on the part of the petitioner to disclose fully and truly all material facts. What is recorded in the concluding paragraph of the reasons as regards omission on the part of the petitioner to furnish true and correct affairs of the company, does not find any support in the preceding paragraphs. Thus, except for the bald statement that there is omission on the part of the petitioner to furnish true and correct affairs of the company, there is nothing whatsoever in the reasons recorded to indicate the nature of the omission and as to which facts had not been truly and fully disclosed. Hence, on a plain reading of the reasons reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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