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Dy. Commissioner of Income Tax, Range-VI, Lucknow Versus M/s U.P. State Bridge Corporation Ltd. and Vica-Versa

2015 (12) TMI 825 - ITAT LUCKNOW

Reopening of assessment - Held that:- Undisputedly in the instant case, nothing has been brought out by the Assessing Officer that income chargeable to tax has escaped assessment on account of failure on the part of the assessee as the assessee has declared all the details and raised a claim of 100% depreciation. Moreover, the issue on which assessment was reopened was already examined by the AO while allowing the claim in the original assessment. In the light of these facts, we are of the consi .....

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SUNIL KUMAR YADAV, JM. These cross appeals are preferred by the assessee as well as Revenue against the orders of the CIT(A) pertaining to the AY 2005-06 & 2009-10. These appeals were heard together and are being disposed of through this consolidated order for the sake of reference we extract the grounds of appeal raised by them. ITA No. 317/LKW/2015 for AY 2005-06 (Revenue s appeal) In this appeal, the Revenue has raised the following grounds: 1. The Commissioner of Income Tax (Appeal) has .....

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n the reasons recorded under subsection (2) of section 148. 2. That the appellant crave leaves to add or amend any one or more of the grounds of appeals, as stated above, as and when need to do so arises with the prior permission of the Court. ITA No. 305/LKW/2015 for AY 2005-06 (Assessee s appeal) In this appeal, the assessee has raised the following grounds: 1. The Learned Commissioner of Income Tax (Appeals)-ll, Lucknow (hereinafter referred to as the Ld. CIT(A) erred on facts and in law in c .....

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all justified in confirming the action of the Ld. A.O. in initiating the reassessment proceedings u/s 148 of the Act and passing the assessment order u/s 148/143(3) of the Act. (i) Because the assessee has already been subjected to scrutiny assessment u/s 143(3) of the Act. (ii) Because notice u/s 148 has been issued after expiry of four years from the end of the relevant assessment year. (iii) Because in the reason to notice issued u/s 148 of the Act, there has not been any such finding that th .....

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in the hands of the appellant ignoring the facts of the instant case that the expenses incurred by the appellant on temporary erection /accommodation is fully allowable expenditure . 4. On the undernoted facts, the Ld. CIT(A) was not at all justified in confirming the addition of ₹ 5,53,31,477/-:- (i) Because it was the first year when disallowance of temporary site accommodation expenses was made. (ii) Because the assessee is a wholly owned Government undertaking which is subjected to CA .....

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6,032/-made by the Ld. A.O. in the hands of the appellant ignoring the facts of the instant case that the expenses incurred by the appellant on tools, minor equipments, scaffolding, erecting etc are fully allowable expenditure. 6. On the undernoted facts, the Ld. CIT(A) was not at all justified in confirming the addition ofRs.8,78,96,032/-:- (i) Because it was the first year when disallowance of shuttering, sheltering and scaffolding expenses was made. (ii) Because the assessee is a wholly owned .....

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Ld. A.O. erred on facts and in law in not providing the appellant reasonable and sufficient opportunity to have its say and to make compliances of the reasons being relied upon by him in making addition in the hands of the appellant. 8. The appellant reserves it right to advance such other grounds before or at the hearing, which it may consider fit and appropriate, for which it craves leaves to amend, alter or otherwise modify the grounds appearing hereinbefore with the kind permission of the Ho .....

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essment on account of the failure on the part of the assessee. 3. During the course of hearing, the ld. counsel for the assessee has invited our attention that the reopening of the assessment is bad in law as the Assessing Officer has reopened the assessment after four years from the end of the relevant assessment year without recording a satisfaction that the income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee. Ld. counse .....

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the judgments in the cases of Arun Gupta Vs. Union of India reported in 371 ITR 394 (Alld.), Tao Publishing (P.) Ltd. Vs. DCIT reported in 53 taxmann.com 146 (Bombay) and in the case of ACI Oils (P.) Ltd. Vs. DCIT reported in 57 taxmann.com 260 (Alld.). 4. Ld. DR on the other hand, has placed a reliance upon the order of the CIT(A). 5. Having carefully examined the orders of the lower authorities and the material available on record in the light of rival submission, we find that undisputedly, th .....

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es were examined by the AO while framing the assessment u/s 143(3) of the Act. Therefore, we are of the view that assessment was reopened after four years from the relevant assessment years. 6. We have also carefully perused the judgments referred to by the assessee in the case of Arun Gupta Vs. Union of India (Supra) appearing at page 2 to 16 of the compilation in which it has been categorically held that provision of Section 147 & 148 of the Act indicate that the Assessing Officer has wide .....

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of the relevant assessment year, in addition to the satisfaction of the Assessing Officer that he has reasons to believe, he must also indicate that the assessee had failed to disclose fully and truly all material facts necessary for his assessment for that assessment year. If a notice u/s 148 has been issued without the jurisdictional foundation u/s 147 being available to the Assessing Officer, the notice and the subsequent proceedings would be without jurisdiction and would be liable to be qu .....

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