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TMI Blog2018 (4) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, bank account statements and other details which were called for by the ld. Assessing Officer. Contention of the ld. Authorised Representative was that ld. Assessing Officer had in the original assessment also examined the reason for selecting of assessee's case for scrutiny and clearly expressed that there were no special features which could be noticed on examination. 3. Continuing his submissions, the ld. Authorised Representative submitted that assessee surprisingly received notice u/s.148 of the Act on 30.03.2015 for assessment years 2008-09 and 2009-2010, and on 26.03.2015 for assessment year 2010-2011. As per the ld. Authorised Representative the reassessments initiated for assessment years 2008-09 and 2009-2010 were after four years from the end of the impugned assessment years, whereas that for assessment year 2010-2011 was within four years. According to him, assessee had thereupon requested the ld. Assessing Officer to furnish the reasons for the reopening. Contention of the ld. Authorised Representative was that reasons supplied by the ld. Assessing Officer mentioned difference in gross hire charges shown by the assessee in its profit and loss account and what was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as considering depreciation allowable to a rig and compressor mounted on a lorry whereas in the case of the assessee mobile line pump was an integral part of the ready mix concrete mixer mounted on trucker chassis. Reliance was placed on a decision of Nagpur Bench of the Tribunal in the case of ACIT vs. M/S. GST Infrastructure MAK, (ITA Nos. 95 & 96/Nag/2012, dated 6.02.2013). As per the ld. Authorised Representative, the question raised before the Tribunal in the above case, was whether concrete mixers for pumps mounted on trucks which were called transit mixers was eligible for depreciation at a higher rate. As per the ld. Authorised Representative, the Tribunal had held that such concrete mixer was to treated as a motor lorry and was eligible for higher depreciation. According to him, ld. Assessing Officer had examined all the issues in the original assessment and assessee had furnished all the information called by the ld. Assessing Officer. As per the ld. Authorised Representative, the reassessment attempted was based on a mere change of opinion. Relying on the judgments of Hon'ble Apex in the case of CIT vs. Foramer France,(2003) 264 ITR 566 and CIT vs. Kelvinator of India Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this. 2. Rental receipts received by you amounts to Rs. 4 lakhs during the year as per the TDS claimed made in the R/I. The apparent receipts are not offered to tax in vis -a - vis TDS of the same is to brought to tax as per I T Act. Your submission is any on this claim may explain with supporting proof /justification if any. 3. As per the claim of depreciation made on mobile line Pump you have claimed @ 30 % instead of 15 % allowable as per the provision of the I T Act. You are requested to justify your claim of support or Proof if any, failing on which the excess claimed amount of Rs. 15,50,511/- will be disallowed" For the other two years paras 1 and 3 of the above reasons appear as para 1 & 2. Except for the change in the figures all the notices were more or less typically worded. Now the question before us is whether the items mentioned in the reasons was within the contemplation of the Assessing Officer, while he was doing the original assessment and whether he had considered it. For deciding this we need to look at the original assessment orders for the impugned assessment years. In the original assessment for all the years, it is clearly mentioned that assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts relating to the assessment, including the reasons why the returns were taken up for scrutiny itself, we cannot say that he was not aware of the form 16A and the receipts shown by the assessee in the Profit and Loss account. Viz-a-viz depreciation claimed for mobile line pump, we cannot say the Assessing Officer erred in allowing the claim at the rate of 30%. For resorting to a reopening, where the original assessment was done after examining all details, in our opinion, Revenue has to show that such reopening was not based on a change of opinion. There were no new material available with the Revenue other than records filed by the assessee during the course of the original assessment. At this juncture, it would be apposite to have a look at the observation of the Hon'ble Apex Court in the case of Kelvinator of India Ltd (supra). "4. On going through the changes, quoted above, made to section 147 of the Act, we find that, prior to the Direct Tax Laws (Amendment) Act, 1987, reopening could be done under the above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act (w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of the expression, ' reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression ' has reason to believe' in place of the words ' for reasons to be recorded by him in writing, is of the opinion' . Other provisions of the new section 147, however, remain the same." 8. Their lordships had affirmed the judgment of Delhi High Court in the case of CIT vs. Kelvinator of India Ltd, (2002) 123 Taxman 433 (Delhi) and CIT vs. Eicher Ltd, 294 ITR 310. In the case of Eicher Ltd (supra), the reopening attempted was within four years from the end of the concerned assessment year. Thus, in our opinion once the original assessment were completed after considering all details filed by the assessee, unless there is tangible material which is outside of what was filed by the assessee which can justify a reopening there cannot be a valid reopening. As for Explanation 1 to Sec.147 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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