TMI Blog2020 (1) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the AO disposing of the objections. The Petitioner had not referred to the so called other two grounds for reopening. AO has not stated that the two grounds for reopening have gone unanswered. It is the contention of the learned counsel for the Respondent that it is not necessary. But at the prima facie stage, we note the way parties have understood and acted on the Reason, which would be otherwise in normal course of conduct. Change of opinion - As regards application of Section 43A and the second explanation thereto, a query was raised by the Assessing Officer vide notice under Section 142(1) wherein the Assessing Officer stated that on perusal of depreciation charge was seen during the year and the information w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had taken a view. In such circumstances re-opening would be a mere change of opinion, which is not permitted. - Decided in favour of assessee. - WRIT PETITION NO.2595 OF 2019 - - - Dated:- 15-1-2020 - NITIN JAMDAR M.S.KARNIK, JJ. Ms. Aarti Sathe for Petitioner. Mr. A.R. Malhotra a/w Mr. N.A. Kazi for Respondents. P.C.:- Having heard the parties we are of the opinion that the case is made out for issuance of Rule and grant of interim order. The reasons are as follows. 2. The Petitioner has challenged the notice dated 26 March 2019 seeking to reopen the assessment for the Assessment Year 2015-16 under Section 148 of the Income Tax Act, and the order dated 6 September 2019 dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of a change in the rate of exchange during any previous year after the acquisition of such asset, there is an increase or reduction in the liability of the assessee as expressed in Indian currency (as compared to the liability existing at the time of acquisition of the asset) at the time of making payment, a) towards the whole or a part of the cost of the asset, or b) towards repayment of the whole or a part of the moneys borrowed by him from any person, directly or indirectly, in any foreign currency specifically for the purspose of acquiring the asset along with interest, if any, the amount by which the liability as aforesaid is so increased or reduced during such previous year and which is taken into account at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, there is omission to do so has resulted in excess allowance of depreciation by ₹ 3,54,84,628/-. 6. The learned counsel for the Petitioner contended that though the reopening of the assessment is sought to be done within a period of four years, the mandate of Section 147 of the Act requires that there should be no reopening of the assessment on a mere change of opinion. Learned counsel submitted that as regards Section 43A of the Act which related to the claim of depreciation by the Petitioner, material was furnished to the Assessing Officer along with the return and even in the return of income all facts were disclosed. A specific query was raised in respect of the claim of depreciation. A show cause notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was given by the Petitioner and this aspect of the claim was missed by the Assessing Officer and therefore there was no opinion formed by the Assessing Officer and it cannot be called as a case of change of opinion. 8. We have perused the reasons. In the reasons there is reference to the Section 43A of the Act and the claim of the Petitioner is based on the same. In our prima facie reading of the reasons the fact of the operations have come to standstill and the properties were disposed of and the claim of depreciation being incorrect, is a matter of narration. Thereafter narrating so, the foundation of the reasons, prima facie, indicate that foundation is the allegation that the Petitioner has not paid the liability. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 25 November 2017 could be considered as a response to the show cause notice. According to the learned counsel for the Respondent the notice calling upon the Petitioner to show cause was dated 30 November 2017 and the letter dated 25 November 2017 could not be considered as a response. This letter was inwarded on 4 December 2017 and the notice dated 30 November 2017 called upon the Petitioner to submit reply by 5 December 2017. This response of the Petitioner was with the Assessing Officer prior to the dates stipulated. Therefore, prima facie, a specific query was raised by the Assessing Officer, and material was produced in response to the specific query by the Petitioner. 11. In the case of Integra Garments Textiles Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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