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TMI Blog2015 (2) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of law for our consideration: "(a) Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the initiation of reassessment proceedings u/s 147 of the Act in this case was not valid and quashing the reassessment order dated 28 November 2008 passed by the Assessing Officer? (b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the Assessing Officer had no reason to believe that income has escaped assessment and that the reassessment proceedings have been initiated u/s 147 on mere change of opinion, ignoring the detailed reasons given by the Assessing Officer which have endorsed by the CIT(A)?" 3. The respondent asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pitalized and depreciation at 60% or 30% as applicable should have been allowed depending on the date of installation. Thus the assessee's claim of software charges of Rs. 4,40,85,941/- is not allowable and the assessee's income to the extent of Rs. 2,71,42,796/- has escaped the assessment as worked out as under:- Total software expenditure debited 7,03,36,291 Less: Expenditure capitalized 2,62,50,350 Balance allowed as revenue expenditure 4,40,85,941 Purchased/installed upto 30.9.02 1,23,91,210 Purchased/installed upto 30.9.02 3,16,94,731 Purchased/installed from 1.10.02 74,34,726 Depreciation at 60% on 1,23,91,210 95,08,419 Depreciation at 30% on 3,16,94,731 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 234B of the Act and the same was paid in the past as under: A.Y. 1993-94 42,16,122 A.Y. 2000-01 6,62,41,729 A.Y. 2001-02 93,33,004 Total 7,97,90,855 In the above assessment years, the payment of the above interest was not allowed and was added back to the income of the respective years. Therefore, when part of it was refunded as over charge of interest u/s. 234B of the Act refunded to us, they cannot be taxed. In view of the matter, this amount of Rs. 6,97,50,863/is excluded from chargeable income of this year. The assessee's above contention is not correct as the interest u/s. 234B of the Act is a penal interest and the same is not allowable as deduction in computing the income. Interest u/s. 234B of the Act is lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order allowed the respondent assessee's appeal interalia holding that all the three grounds which form the basis of the impugned notice were a subject matter of consideration leading to order dated 20 February 2006 in regular assessment proceedings. In particular the impugned order records as under: "On perusal of assessment order, we observe that AO at the time of making original assessment dated 28.02.2006 considered the issues of allowing software charges of Rs. 4,40,85,941/- as revenue expenditure and a sum of Rs. 2,62,52,350/- as capital in nature after discussing the issue in detail, as is evident not only from para 12 (at pages 27 to 30) of assessment order, but also the said fact is mentioned by the AO himself in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order that the grounds in support of the impugned notice were a subject matter of consideration in regular assessment proceedings. 8. We find that the impugned order of the Tribunal has recorded a finding of fact that all the issues which form the basis of the reopening notice, was a subject matter of consideration during the regular assessment proceedings. On the above facts the impugned order records that reconsideration of the same material would amount to a review of an assessment order which is not permissible. The Apex Court in CIT Vs. Kelvinator of India Ltd. reported in 320 ITR 561 has held that jurisdiction to reopen an assessment is not jurisdiction to review the assessment order. The contention urged by the revenue t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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