TMI Blog2018 (4) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... dv. For The Respondent : Ms. Ruby George, IRS, CIT. ORDER PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER Assessee through these appeals, assail the reopening of the assessment done for the impugned assessment orders, apart from assailing the merits of the additions made. 2. Ld. Counsel for the assessee submitted that assessee was engaged in the business of mobile construction equipments hiring, and labour contract. As per the ld. Authorised Representative, assessee had filed her return for the impugned assessment years declaring income of F2,98,215 for assessment year 2008-09, F4,95,203/- for assessment year 2009-10 and F10,73,156/- for assessment year 2010- 2011. As per the ld. Authorised Representative, original assessments were completed u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short the Act ) after verifying the books of accounts, 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 wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pump or any verification done on the income shown by the assessee in its profit and loss account with the TDS certificates. As per the ld. Authorised Representative, ld. Commissioner of Income Tax (Appeals) took an erroneous view that none of the issues were discussed in the original assessment order and there was no true and full disclosure by the assessee. According to him, ld. Commissioner of Income Tax (Appeals), erred in holding that the reopening for the impugned assessment years were validly done. 5. Continuing his submissions, ld. Authorised Representative submitted that reliance placed by the lower authorities on the judgment of Jurisdictional High Court in the case of CIT vs. Popular Borewells Services, 194 ITR 12, while holding that mobile line pump was eligible for depreciation, only at the rate of 15% was incorrect. According to him, Jurisdictional High Court was 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not apply at all. 7. We have considered the rival contentions and perused the orders of the authorities below. Reason given for reopening for all the assessment years are similar except for assessment year 2008-09. Notice for the latter year includes one more item mentioned as rental receipts not shown by the assessee in her return of income. Reasons given for reopening the assessment for assessment year 2008-2009 is taken as a representative sample and is reproduced hereunder:- 1. It is observed from the Form 15A, that the gross receipts received by you from M/s. Grasim Industries Ltd was ₹ 1,83,88,589/. As per the P L alc you have admitted the gross hire charges as ₹ 1,74,OO,748/- Hence there is a shortfall of ₹ 9,87,841/- which has to be brought to tax as per the provisions of the I T Act, 1961. Please clarify along with submission / Justification if any, in support of this. 2. Rental receipts received by you amounts to ₹ 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 exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts and statements and other details as called for and the case was discussed. The reason for selection of this case for scrutiny was examined during the course of assessment proceedings and no special features were noticed. The assessment is completed under Section 143(3 ) of the Income Tax Act, 1961, accepting the loss returned . If we look at the narrations given in the assessment orders and the reasons cited for reopening the assessments, we cannot say that Assessing Officer having made a detailed verification of books and records produced by the assessee and having received all details which were called for, was oblivious of the issues, mentioned as reasons for reopening. What is mentioned in the reasons are items which any prudent Assessing Officer will verify when he is doing an assessment of a person engaged in the business of mobile construction equipment and labour contracts. Ld. Assessing Officer having examined all facts 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 depreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words reason to believe but also inserted the word opinion in section 147 of the Act. However, on receipt of representations from the companies against omission of the words reason to believe , Parliament reintroduced the said expression and deleted the word opinion on the ground that it would vest arbitrary powers in the Assessing Officer. We quote hereinbelow the relevant portion of Circular No. 549 dated October 31, 1989 ([1990] 182 ITR (St.) 1, 29), which reads as follows : 7.2 Amendment made by the Amending Act, 1989, to reintroduce the expression ' reason to believe' in section 147.-A number of representations were received against the omission of the words ' reason to believe' from section 147 and their substitution by the ' opinion' of the Assessing Officer. It was pointed out that the 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 pas ..... 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