2015 (7) TMI 236
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....edings u/s 147 without appreciating the fact that the same had been done in utter disregard of the express provision of the Act on fresh application of mind on the same set of facts, more so when there was no failure on the part of the appellant to disclose truly and fully all the facts necessary for completion of the original assessment u/s 143(3). 2. That on the facts and in the circumstances of the case, the Ld. CIT(Appeals) erred in not holding that the order u/s 143(3) r.w.s 147 dated 27-11-2007 passed by the AO is unjustified, erroneous and needs to be summarily cancelled. 3. That on the facts and in the circumstances of the case, Ld. CIT(Appeals) erred in confirming the addition of depreciation amounting to Rs. 4,20,24,089/- in computing total income under normal provisions of the Act. 4. That on the facts and in the circumstances of the case, Ld. CIT(Appeals) erred in confirming addition of depreciation amounting to Rs. 4,20,24,089/- in computing Book Profit u/s 115JB. 3. The first two grounds agitate the reopening and, consequently, impugn the assessment as not valid in law. The arguments assumed during hearing qua the said grounds seek to supplement the same on th....
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.... second half of the year respectively. This led to a difference between the exigible depreciation allowance as per the two depreciation charts at Rs. 420.24 lacs. The figure as per the TAR, being certified by the Auditors, was more authentic. This led to the belief as to an excess claim and allowance of depreciation by that sum (Rs. 420.24 lacs) and, consequently, escapement of income from assessment to that extent. These constitute the two reasons for the reopening of assessment in the instant case, which stand reproduced at paragraph 1 (pages 1-3) of the assessment order, as also enclosed as a part of paper-book (PB pages 89-90). 4. We have heard the parties, and perused the material on record. We are unable to see any validity; rather, basis, for the Revenue to claim that the decapitalization of interest and commitment charges (hereinafter referred to as 'the interest component') ought to be from the opening WDV of the relevant block of assets. When the addition to the same, which is for the completed projects, is only during the current year, separately for the first half and the second half thereof, how and why the reduction on account of the interest component of the said a....
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.... all material facts in relation to the computation of its income. The non-consideration of the revised, correct claim being patent, rather, admitted; manifest from the record, where, then, is the question of a change of opinion? The question of change of opinion would arise only in the case of consideration and formation of a view or opinion. Rather, where and to the extent the original claim, again, admittedly, is not a correct claim, the reduction on account of decapitalization of the interest component of the cost of acquisition having been made incorrectly, its' adoption constitutes, or can be argued to constitute, a mistake apparent from record. The argument of all the material being available on record, or of no fresh material coming to the possession of the AO, become irrelevant, or more correctly, is rendered so, or of no consequence, in view of our clear finding, borne out of the record and, rather, admitted, of there being no consideration, much less expression of an opinion and, thus, it being not a case of change of opinion or a review, so as to preclude reassessment even where initiated, as in the instant case, within four years from the end of the relevant assessment ....
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....nion on its basis; the sole criteria being its relevancy and credibility (refer: Pooran Mal v. DI (Inv.) [1974] 93 ITR 505 (SC)). The Revenue has also relied on case law, which has not been met by the assessee, viz. IPCA Laboratories Ltd. v. Dy. CIT [2001] 251 ITR 420 (Bom); Praful Chunilal Patel v. Asst. CIT [1999] 236 ITR 832 (Guj). The same view stands expressed by some recent decisions by the hon'ble courts, including the hon'ble jurisdictional high court, as in the case of Export Credit Guarantee Corporation of India Ltd. vs. Addl. CIT [2013] 350 ITR 651 (Bom); Indian Hume Pipe Co. Ltd. vs. Asst. CIT [2012] 348 ITR 439 (Bom); CIT vs. Usha International Ltd. [2012] 348 ITR 485 (Del)(FB); and Dalmia (P.) Ltd. vs. CIT [2012] 348 ITR 469 (Del), with in fact the apex court refusing to admit the appeal against the decision by the jurisdictional high court in Eleganza Jewellery Ltd. vs. CIT (in WP No. 2763 of 2013 dated 18.02.2014). In fact, the courts have gone to the extent of saying that where the AO has taken an erroneous view, i.e., one which could not be taken by one properly instructed in law, the same cannot be said, or would not qualify, to be a view, while the present case....