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TMI Blog2015 (9) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the impugned re-opening taken recourse to by the Assessing Officer. The latter ground assails correctness of the Assessing Officer's action affirmed by the CIT(A) in restricting depreciation rate @15% instead of 20% on dumper vehicle thereby resulting in the impugned disallowance on merits of Rs. 14,81,512/-. 3. Both parties state very fairly that the assessee's former ground challenging legality of reopening goes to the very root of the matter. We take up this legal plea first for adjudication. 4. The assessee firm undertakes civil contracts. It filed its return of income on 31.12.2006 acknowledging nil income. The Assessing Officer completed a regular assessment on 26.12.2008 adding disallowance of depreciation to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, I have to reason to believe that income chargeable to tax has escaped assessment and the case is fit for issue of notice u/s.148 of the I. T. Act." 3. The assessee filed its objections to the above stated reopening notice by turning it as a change of opinion as under: "We are in receipt of the reasons recorded for reopening of the assessment for assessment year 2006-07 under the cover of your letter under reference. On going through the contents of the recorded reasons for reopening of the assessment u/s. 147 of the Act, it transpires that the Assessing Officer has observed that "the business of the assessee during the previous year was 'civil contract' hence the assets 'Dumper' would fall under Plant and Mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was satisfied himself that there was no point to draw any adverse inference on the point of rate of depreciation claimed on dumpers. Hence, the Assessing Officer has, after his satisfaction, made the assessment order for assessment year 2006-07 allowing the claim of depreciation @20% made on dumpers. However, without prejudice to the facts mentioned in preceding paragraph, we would like to state the brief facts of the case that the assessee had undertaken sub-contract from M/s. KMC Construction Limited, Allahabad who had been awarded a project of construction by Uttar Pradesh Government. The nature of work to be carried out by the assessee was to do the earth work for which Pond ash and soil were used. For carrying out the earth work, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case of the appellant and as such the appellant is entitled to claim depreciation @20% which is less than the allowable rate of depreciation on dumpers. We would like to draw your kind attention to the following judicial pronouncements: [1] CIT vs. Hindustan Marbles Ltd. 219 ITR 655. [2] Kaira District Co-Op. Milk Producers Union Ltd. vs. ACIT, 220 ITR 194. [3] Germen Remedies Ltd. vs. DCIT 287 ITR 494. [4] Parshuram Pottery Works Co. Ltd. vs. ITO 106 ITR 1. We request your good self to consider the objections raised in the preceding paragraphs before proceeding for ma kind of assessment in the case by disposing off the objection by passing speaking order. We rely on the judgment of Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te hon'ble apex court decision hereinabove in support. The question that arises now is as to whether the same is a curable defect or not. The hon'ble jurisdictional high court in above stated case has quashed a similar reassessment in the very fitness of circumstances wherein the concerned assessee's objections have not been decided. A coordinate bench of the tribunal has followed the same for quashing an identical reassessment. We quote all these judicial precedents and hold that once the Assessing Officer in the instance case has not decided/disposed of assessee's objections to the reopening, the same is liable to be quashed. The assessee's legal plea accordingly succeeds. Its second ground on merits has been rendered infructuous. 7. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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