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TMI Blog2013 (12) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that no discussion was made upon this issue in the assessment order and no details were called for by the assessing officer or filed by the assessee on the issue of claim of depreciation under the WDV or straight line method and no finding either positive or negative was arrived at during the course of original assessment proceedings. 3. The learned Commissioner of Income-tax (Appeals) ought to have appreciated that Reassessment is permissible even if the information is obtained after proper investigation from the materials available on record or from any enquiry or research in to the facts or law. Information need not be from external source. 4. The learned Commissioner of Income-tax (Appeals) failed to observe that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns: "The Assessing Officer had reason to believe that income assessable to tax had escaped assessment in view of the as claiming depreciation on WDV method instead of Straight Line Method as mandated in section 32(1) Explanation 2 read with Rule 5(1A) without filing the option as required. Therefore, notice u/s 148 dated 31.3.2011 was issued and served on the assessee." 6. The CIT(A) observed that the notice was issued beyond the period of four years from the relevant assessment year 2004-05. He observed that the notice does not state that the escapement of income chargeable to tax was by result of the failure on the part of the assessee to make a return u/s 139 or in response to a notice issued under sub-section (1) of section 142 or 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndmills @ 80% and the amount of depreciation claimed was ½ of 80% i.e @ 40% as the windmills were used for less than 180 days during the year by the assessee. The Assessing Officer observing that since the assessee had not exercised the option of claiming higher rate of depreciation before the due date of filing of return of income u/s 139(1) of the Act, disallowed the claim for higher rate of depreciation to the assessee. 13. On appeal, the CIT(A) allowed the claim of higher rate of depreciation to the assessee by following the decision of the Chennai Bench of the Tribunal in the case of K.K.S.K. Leather Processors (P) Ltd. (supra). Thus, he granted depreciation on windmills amounting to Rs. 41,56,190/-/- to the assessee. 14. We f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Appendix I Though the proviso stipulates that if such option is exercised before the due date of [furnishing the return of income under sub-section (1) of section 139, it can be said that the second proviso to rule 5(1A) is only to facilitate the Assessing Officer in discharging its obligation as per the Explanation 5 to sub-section (1) of section 32 so that the depreciation shall be allowed as per the option of the assessee and not on the discretion of the Assessing Officer. The Assessing Officer is otherwise under obligation to allow the depreciation but because the depreciation is specified under two different Appendices I and IA, the choice is given to the assessee in respect of the assets specified under clause (i) of sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return on due date was exercising of option before due date or not, was of importance. The requirement of second proviso to rule 5(1A) is satisfied if the option is exercised before the expiry of due date of filing of return of income under section 139(1). The meaning of the term 'before due date' shall be understood as it is under-stood by a man of ordinary prudence. Before due date. simply refers and means that not after the expiry of due date. If the requisite act is done before the last day expires, then it will be simply said that 'before due date: When the time of filing the return is available to the assessee till the last moment of the due date, then the whole of that day is available to the assessee and due date expires ..... X X X X Extracts X X X X X X X X Extracts X X X X
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