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Atul Kumar Dalmia Versus I.T.O., Ward-33 (3) , Kolkata

2015 (12) TMI 1285 - ITAT KOLKATA

Reopening of assessment - higher rate of depreciation claimed - Held that:- We are of the view that the 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 .....

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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 tangible materials are found by the AO to reopen the assessment for A.Y. 2006-07, which was originally c .....

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2013 passed by the CIT(Appeals)-XIX, Kolkata in Appeal No.41/CIT(A)-XIX/Wd-33(3)/Kol/12-13 for the assessment year 2006- 07 framed under section 143(3)/147 of the I.T.Act. 2. The assessee filed this appeal on 13.06.2013. The assessee originally raised two effective grounds, i.e., (i) the ld. CIT(A) was not justified in confirming the disallowance made by the AO and (ii) the ld. CIT(A) erred in holding that the rate of depreciation of furniture / buildings on hoardings and the rate of depreciatio .....

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on 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 ex .....

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#8377; 1,74,900/- to the income of the assessee. d) Regarding depreciation on hoarding, the AO applied 10% against 15% as claimed by the assessee. Therefore, he added ₹ 53,855/- being excess against ₹ 1,61,562/-. 3. Against which the assessee preferred an appeal before the ld. CIT(A) who found that the assessee is the owner of mobile hoarding van. In view of the audit report under section 44AB, confirmed the addition made by the AO, finding the depreciation at 30% is not allowable to .....

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ction 148 but nothing was before him to reopen the assessment. The ld. DR contended that 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 cas .....

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s escapement of income from assessment. The Tribunal in Mumbai I bench in ITA No.4282/Mum/2013 for the assessment year 2002-03 while following the Hon ble Supreme Court judgment (supra) held as under: 5.1 It is apparent that a detailed disclosure was made by the assessee in relation to the claim of expenditure. Reopening the assessment on the very same set of facts which were very much available at the time of the original assessment proceedings is nothing but a change of opinion. In our conside .....

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e concept of "change of opinion" is removed, then, in the garb of reopening of assessment, review would take place. Hon'ble Supreme Court in the case of CIT vs.Kelvinator of India India, 320 ITR 561 has held that the Aa must have some tangible material for reopening the assessment. 6. In the present case, we are of the view that the AO reopened the assessment after having accepted the contention of the assessee that higher rate of depreciation is allowable. Again reopening the asse .....

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