TMI Blog2015 (12) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 148 was issued in the year 2011, wherein he did not find anything new material against the assessee to reopen the assessment but he only basing on the facts of the original assessment, he issued the said notice for reassessment and passed the reassessment changing only the rates of depreciation available to the said claims. Therefore, we are of the view that in this present case the AO on mere change of opinion only issued the said notice much less for any tangible material found during these three years. By respectfully following the ratio or principle laid down by the Hon’ble Supreme Court in the case of CIT vs. Kelvinator of India India, 320 ITR 561 [2010 (1) TMI 11 - SUPREME COURT OF INDIA ] we are of the view that no tan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts thereon. The same is reproduced as under: 1) That reopening of assessment is bad in law since it is based on a mere change of opinion and not based on any fresh tangible materials. 2.2 Therefore, the only consideration before us is whether the AO reopened the assessment is justified or not. For better appreciation and understanding, brief facts of the case are as under: a) That the assessee originally filed its return on 29.10.2006 and the assessment was completed on 31.12.2008. Again on 28.03.2011, a notice under section 148 is issued for the reason that the depreciation rates were incorrectly adopted, which resulted in excess claim of depreciation to an extent of ₹ 1,41,305/-. b) That the assessee is an individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in spite of knowing fully that the assessee is eligible for depreciation @15% and intentionally adopted at 30% depreciation on mobile hoarding van and 15% depreciation on hoardings against 10%. Thereby, the AO originally issued a notice for reassessment which was confirmed by the ld. CIT(A), while considering all the material facts before him. In reply, the ld. Counsel for the assessee submitted that his case is squarely covered by the case of CIT-vs- Kelvinator of India 320 ITR 561(SC). The ld. Counsel has also submitted various Tribunal s decision which followed the said decision of the Hon ble Supreme Court stated supra including the Hon ble Jurisdictional High Court at Kolkata reported in 344 ITR 187 (Cal) in the case of Amrit Feeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO reopened the assessment after having accepted the contention of the assessee that higher rate of depreciation is allowable. Again reopening the assessment on same set of facts is not justified. The assessee also filed the statement claiming depreciation along with the return and basing on which the depreciation was allowed in the original assessment. It could not be said that the AO did not apply his mind and there was nondisclosure of facts by the assessee. The AO completed the assessment proceedings in the year 2008 and again a notice under section 148 was issued in the year 2011, wherein he did not find anything new material against the assessee to reopen the assessment but he only basing on the facts of the original assessment, he is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
