TMI Blog2012 (8) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Authority and consequently before the ITAT - writ petition is dismissed. - W.P. (C) NO. 694 OF 2011 - - - Dated:- 11-2-2011 - V. GOPALA GOWDA, B.N. MAHAPATRA, JJ. Ganesh, J. Sahoo, D. Panda, P. Mohapatra and A. Mohapatra for the Petitioner. JUDGMENT V. Gopala Gowda, CJ. The petitioner, an assessee under the Income Tax Act, has filed this writ petition questioning the impugned notice dated 28.10.2010 issued under section 148 of the Income Tax Act, 1961 for the assessment year 2006-07 seeking for issuance of a writ of certiorari urging various facts and legal contentions and has sought for a declaratory relief to declare section 147 of the Income Tax Act, 1961 in so far as it permits the Assessing Officer to reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to unabsorbed depreciation allowance for the assessment year 2006-07 has been decided in petitioner's favour by the Commissioner of Income Tax (Appeals) by order dated 30.9.2010 after duly considering both the amendments to section 32(2) of the Act by Finance Act, 1996 and the Finance Act, 2001. While issuing the impugned notice, the opposite party has completely ignored the fact that the Commissioner of Income Tax (Appeals) has already considered and given a reasoned order adjudicating upon and determining the issue with respect to the unabsorbed depreciation for assessment year 2006-07. The Tax Department has filed an appeal against the said order of the Commissioner of Income Tax (Appeals) before the Income Tax Appellate Tribunal wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition has also been reiterated and held in favour of the petitioner by the Commissioner of Income Tax (Appeals) in the aforesaid order dated 30.9.2010 which issue is now pending in appeal before the Income Tax Appellate Tribunal. 5. It is further contended that the notice was issued under section 148 of the Act to the petitioner seeking to reopen the assessment of the petitioner for the assessment year 2006-07 on the ground that the income of the petitioner had escaped assessment. In response to the said notice, the petitioner addressed a letter dated 11.11.2010 requesting the opposite party to treat its return of the income filed on 28.6.2007 as its return furnished in response to the said notice without prejudice to its submission tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 963] 49 ITR 1. 7. Statement of counter is filed by opposite party no.1 inter alia opposing the prayer of the petitioner traversing the petition averments. It is necessary to refer briefly to paragraphs 7, 8 and 10. At para-7 it is stated that while giving effect to the order of the Commissioner of Income Tax (Appeals), it was found that the then assessing officer had not appreciated the fact that the entire depreciation allowance beginning from the assessment year 1990-91 to the assessment year 1997-98 aggregating to Rs. 42578.02 lakh had lapsed before the assessment year 2006-07 and, therefore, the petitioner was not eligible for the purpose of set off and carry forward during the relevant assessment year 2006-07 by virtue of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against the show cause notice is not maintainable in law as he has appeared before the assessing officer and taken time. Whatever grounds urged in this writ petition may very well be stated before the assessing officer. 8. With reference to the above said rival legal contentions, the following points would arise for consideration: (a) whether this Court is required to exercise its extra ordinary jurisdiction to interfere with the show cause notice, (b) whether action taken under Section 147 of the I.T. Act to reopen completed assessment on the ground that while completing assessment under Section 143(3) the Assessing Officer has allowed excess amount of depreciation to which the petitioner is not entitled to; (c) What order? 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward. The depreciation allowance pertaining to the earlier previous years which remained unadjusted against profits as at the beginning of the previous year relevant for the A.Y. 97-98 could be carried forward only up to end of the A.Y. 2005-06. This is so because Section 32(2) as it existed prior to A.Y. 97-98 was amended with effect from A.Y. 97-98. As per this amended provisions depreciation allowance of earlier years which remained unabsorbed as on 01.04.1996 could be carried forward only up to eight assessment years beginning from the A.Y.1997-98. This provision was also explained so by the Finance Minister in his speech while moving the Finance (No. 2) Bill 1996 by which the amendment was made." 10. Paragraph 3 is relatable to di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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