TMI Blog2016 (6) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... n the final order of assessment, he can be stated to have formed an opinion whether or not in the final order he gives his reasons for not making the addition Double claim of brought forward depreciation - Held that:- Assessing Officer made no disallowance on the said claim of unabsorbed depreciation of Tapi Bank of ₹ 8.28 lacs in the original assessment. Quite apart from this, we do not see any material, on the basis of which, the Assessing Officer asserts that the brought forward loss of ₹ 28.58 lacs includes the unabsorbed depreciation of ₹ 8.28 lacs. The two are independent separate figures. In fact, it was pointed out by the assessee in the communication dated 30.04.2010 it was a sum of ₹ 7.98 lacs of loss of Tapi Bank which was included in the brought forward loss of ₹ 28.58 lacs and which the assessee upon noticing error surrendered. Additionally we also do not find any failure on part of the petitioner to truly and fully disclose all material facts necessary for assessment, principal condition required to be satisfied for reopening of the assessment beyond the period of four years. On all counts thus, the petition must succeed - SPECIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation has been allowed twice. Thus the excess allowance of depreciation of ₹ 8,28,666/- require to be withdrawn. 4. In view of the above facts, I have reason to believe that Income chargeable to tax has escaped assessment to the extent of ₹ 2,89,22,575/- (Rs. 2,80,93,909/-+Rs. 8,28,666/-). Thus this is a fit case of re-opening the assessment u/s 147 of the IT Act 1961 for A.Y.2008-09. 3. The petitioner under communication dated 22.06.2015 raised several objections to the proceedings for reopening which included the contention that both the claims were examined by the Assessing Officer during the original assessment proceedings and that, therefore, the reopening was not permissible to alter the order of the assessment. The Assessing Officer disposed of such objections by an order dated 08.09.2015, upon which this petition has been filed. 4. Having heard learned counsel for the parties and having perused the documents on record, we notice that the Assessing Officer had recorded two grounds for issuing the notice for reopening. First one was with respect to the petitioner's claim of bad debt of ₹ 2.80 crores (rounded off) at the rate of 7.5% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT V. South Indian Bank Ltd. 42 DTR 109 copy of which is appended for your immediate reference. Without prejudice it is also clarified that during the previous year assessee bank had made appropriation of profit as under: (i) Bad Debts Funds A/c ₹ 78,07,305 (ii) Contingency Fund ₹ 1,19,71,200 (iii) Unforeseen losses Reserve A/c ₹ 2,55,01,068 Total ₹ 4,52,79,573 Reply upon the decision in the case of Rural Electrification Corporation Ltd. -Authority for Advance Ruling New Delhi (180 Taxman 55) wherein it is held that even appropriation will also amount to provision made as require under the I.T.Act and thus replying upon the said ratio your assessee bank is certainly eligible for deduction U/s. 36(1)(viia) of ₹ 2,80,93,909/-. To sum up, since your assessee is eligible for claim of deduction of ₹ 6,34,35,531/- U/s. 36(1)(viia) r.w.s. 36(2)(v) and also of ₹ 2,80,93,909 U/s. 36(1)(viia). Claim made of lesser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l claims so made and accepted by him, it would even otherwise cast an unreasonable expectation which within the short frame of time available under law would be too much to expect him to carry. Irrespective of this, in a given case, if the Assessing Officer on his own for reasons best known to him, chooses not to assign reasons for not rejecting the claim of an assessee after thorough scrutiny, it can hardly be stated by the revenue that the Assessing Officer can not be seen to have formed any opinion on such a claim. Such a contention, in our opinion, would be devoid of merits. If a claim made by the assessee in the return is not rejected, it stands allowed. If such a claim is scrutinized by the Assessing Officer during assessment, it means he was convinced about the validity of the claim. His formation of opinion is thus complete. Merely because he chooses not to assign his reasons in the assessment order would not alter this position. It may be a non-reasoned order but not of acceptance of a claim without formation of opinion. Any other view would give arbitrary powers to the Assessing Officer. 43. We are, therefore, of the opinion that in a situation where the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tapi Bank which was included in the brought forward loss of ₹ 28.58 lacs and which the assessee upon noticing error surrendered. This issue, the assessee had raised substantially in the objection to the process of reopening as under: (II) Excess claim of Unabsorbed depreciation of ₹ 8,28,666/- of Tapi Co. Op. Bank Ltd. In the reasons recorded it has been contended that claim of unabsorbed depreciation of ₹ 8,28,666/- that of Tapi Co. Op. Bank Ltd. is made excessive and to that extent income has escaped assessment. At the outset it is clarified that this reasoning is also incorrect firstly there is no excess claim of unabsorbed depreciation of ₹ 8,28,666/-. The amount of unabsorbed depreciation is ₹ 8,28,666/- and the same is correctly claimed and allowed. Secondly claim of brought forward loss of ₹ 28,56,816/- includes loss of ₹ 7,98,519/- which is loss for the part period relevant to A.Y. 2008-09 and claimed separately also. The error was admitted in the very first hearing itself SUO MOTO by assessee itself vide its letter dt. 30th April 2010 and accordingly the then learned Assessing Officer has made addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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