TMI Blog2013 (5) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... e for issuance of such notice must be satisfied. This additional safeguard not only involves the application of mind on the part of the Chief Commissioner or the Commissioner but his satisfaction, which would be based on the reasons recorded by the AO, and such satisfaction should be that it is a fit case for issuance of the notice. Admittedly, in the present case, these requirements have not been fulfilled. What the Revenue however argues is that when the Commissioner had perused the suggestions of the audit party, the same should be seen as substantial compliance of such a requirement cannot be accepted. See CIT v. SPL’s Siddhartha Limited [2011 (9) TMI 640 - DELHI HIGH COURT]. Thus impugned notice for reassessment quashed. - Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rification of the invoice bill and Customs Bill of entry no. 468 dated 11.11.2004. It has revealed that bill of entry was presented to Customs authority on 11.11.2004 for clearance of Tug and the relevant customs duty was debited in the DFCLC Lie No. 0810042703 dated 12.10.2004. This clearly indicates that th assessee company got custody to Tug in November 2004 and thereafter, it was put to use for business. Thus, the assessee was eligible to get 50% depreciation [12.5%] on Tug which was cleared from Customs authority in November 2004. This has resulted in excess allowance of depreciation of Rs. 25834550/= [50% of 51669100/=]. Upon receipt of the reasons, the petitioner under a communication dated 8th November 2012, raised detailed objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t customs duty was debited on 12th October 2004, which would indicate that the petitioner got the custody of Tug only in the month of November 2004 and that therefore, full depreciation @ 25% could not have been claimed during the year under consideration. She submitted that these facts were not emerging from the return or other documents produced during the course of assessment. The Assessing Officer having independently examined the issue was convinced that the assessment was required to be reopened. Merely because certain aspects of the matters were brought to his notice by the audit party would not per se mean that he was acting under the directions of the audit party. [iii] The suggestions of the audit party with respect to the remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Joint Commissioner, after the expiry of four years from the end of the relevant assessment year, under the Joint Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice. Sub-section (1) of Section 151; as can be seen, requires that in a case where the assessment under section 143 (3) or section 147 has been made for a particular assessment year, no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Assistant Commissioner or Deputy Commissioner, unless the Joint Commissioner is satisfied on the reasons recorded by such Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is an important procedural safeguard against arbitrary exercise of power of issuing a notice for reopening of assessment previously framed after scrutiny. Proviso to subsection (1) of Section 151 is applicable, where such notice is issued after expiry of four years from the end of relevant assessment year. In such a case, the requirement of satisfaction to be recorded is that of the Chief Commissioner or Commissioner. Such requirement cannot be seen as technical. Compliance of such requirement is therefore, necessary before issuance of notice under section 148 of the Act. Delhi High Court in case of Commissioner of Income-tax v. SPL s Siddhartha Limited, reported in [2012] 345 ITR 223 (Delhi) held and observed as under :- Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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