TMI Blog2006 (11) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the income has escaped assessment. Secondly, it is not at all a case that the petitioner has not disclosed anything to the respondents. The petitioner has given full particulars of the intangible assets and it has maintained that it is eligible for the depreciation. We may not express our opinion on the merits of the claim of the petitioner. But the fact remains that as far as this assessment year 2003-04 is concerned, the stand taken by the petitioner was accepted by the respondents on the merits and even after disagreeing with the audit objection, as a second thought on the objections from the auditors, he has reopened the assessment. In the reasons to reopen as well as in the decision on the objections, he has nowhere stated as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.50 crores by a subsequent agreement. 2. The petitioner filed a return of its income for the assessment year 2003-04 wherein it claimed depreciation of Rs. 3,05,77,001. The petitioner later on received an intimation dated February 28, 2004, under section 143(1)(a) of the Income-tax Act, 1961 ( the said Act for short), by which the said return was accepted. Thereafter, the petitioner received a notice dated October 7, 2004, under section 143(2) of the said Act. It was followed by a hearing. The petitioner furnished all the required details and an order came to be passed by the first respondent-Income-tax Officer on March 2, 2005, under section 143(3) of the said Act finalizing the assessment, which included the claim for depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company has purchased a future right to receive income. Though it is an asset, but this intangible asset will not qualify for depreciation. In view of this, I have reason to believe that income of Rs. 2.83 crores chargeable to tax has escaped assessment for the assessment year 2003-04. The case is put up for kind approval of the Additional Commissioner of Income-tax, Range-10(1), Mumbai. For sanction for issue of notice under section 148 of the Income-tax Act, 1961. I.T.O. 10(1)(2), Mumbai. 5. The petitioner filed its objections and pointed out that the petitioner had not only made a full and true disclosure but that the first respondent had arrived at the correct decision earlier by applying his mind and there was no reason to reop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejoinder and that the petitioner came to know about it after taking inspection. We were shown that letter from the file of the respondents. Mr. Mistri, therefore, submits that firstly under section 147 of the Income-tax Act, it is necessary that the Assessing Officer must have his reason to believe that the income has escaped assessment. This means that it must be the opinion of the Assessing Officer himself since section 147 begins with the phrase If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment . . . 8. In this behalf, Mr. Mistri, learned counsel appearing for the petitioner, has relied upon a judgment of the learned single judge of the Patna High Court in the case of Sheo Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (c)(iv) of Explanation 2 to section 147 of the Income-tax Act. Secondly, he submitted that under Explanation 4 to section 32(1) of the Income-tax Act, the expression know-how means any industrial information or technique likely to assist in the manufacture or processing of goods and it will not include the kind of intangible assets on which the depreciation is sought. He lastly submitted that the decision to reopen was that of the Assessing Officer himself. It is true that he had initially objected to the reopening in reply to the director of audit but subsequently took his own decision and that it should not be construed as a change of opinion. He submitted that it must be kept in mind that this is going to result into a good loss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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