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TMI Blog2016 (6) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... evant assessment year. 2. Having heard learned counsel for the parties and having perused the documents on record, we gather that under identical circumstances, in case of this very assessee for the assessment year 2010-2011, we had struck down notice for reopening by an order dated 11.1.2016 in Special Civil Application No.15463/2015 making following observations : "1. The petitioner has challenged a notice for reopening the assessment previously framed after scrutiny. Brief facts are as under : 2. The petitioner is a company registered under the Companies Act. For the assessment year 2010-2011, the petitioner had filed return of income on 27.9.2010 declaring loss of 11.78 crores (rounded off). Return was taken in scrutiny. Scrutiny ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercial rights where the asset is acquired and the payee becomes the owner. Unlike this, in the case of leasing, the lesseee does not become the owner of the leased property. Any business or commercial right of similar nature mentioned above covers only right to use the intangible assets like technical knowhow, trade mark, pattern etc. But in this case, the deemed right received is to use a tangible asset I.e infrastructure. Thus, it is clear that the 'right to use infrastructure facility is not similar to 'intangible assets' stated in section 32 of the Act, and hence not eligible for any depreciation. The assessee is allowed to use the infrastructure facility only, but he is not the owner of the infrastructure. Ownership is one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, therefore, the Assessing Officer even during the original assessment was convinced that no additions could be made. She had thus formed a belief which cannot now be allowed to be changed. 3) In any case, reasons are selfcontradictory. If the Assessing Officer believed that no depreciation on such right to user can be granted, her premise that the expenditure is capital in nature would stand falsified. In other words, if the depreciation is to be denied, he petitioner would be eligible for entire deduction as the expenditure being in the nature of revenue expenditure. 5. Learned counsel Ms. Bhatt for the Revenue opposed the petition. She had made available the original file of assessment to enable us to decide the petitioner's first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted. 7. Two things thus immediately become clear. If the issue was brought to the notice of the Assessing Officer by the audit party, despite which, the Assessing Officer had applied her mind independently and recorded her independent satisfaction that income chargeable to tax had escaped assessment, we would not have terminated the notice for reopening. However, in the present case, the facts are entirely different and glaring. It emerges from the recorded portion of the noting of the Assessing Officer that she had not accepted the point of view of audit party at all. She in fact, recorded that the objections raised by the Revenue's audit party is not acceptable. However, for some strange reasons, later on proceeded to issue the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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