TMI Blog2018 (1) TMI 1586X X X X Extracts X X X X X X X X Extracts X X X X ..... mination by the Assessing Officer in the course of original assessment proceedings whether the asses see is entitled to depreciation on computer accessories at the rate of 60 per cent. There was no conscious opinion formed by the Assessing Officer while completing the original assessment under section 143(3) of the Income-tax Act to allow the claim of depreciation on computer accessories at the rate of 60 per cent. Since AO has not examined the issue, it cannot be stated that he had formed an opinion as regards the allowability of depreciation on computer accessories at the rate of 60 per cent. Since no opinion on the issue was formed by the Assessing Officer, the reopening of assessment cannot be stated to be a mere change of opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2006-2007, the return of income was filed on November 27, 2006, declaring a total income of ₹ 45,56,76,918. The assessment under section 143(3) was completed vide order dated December 29, 2008. Later, notice under section 148 was issued for reopening the assessment and reassessment under section 143 read with section 147 of the Act was completed on December 22, 2011 fixing a total income at ₹ 60,66,53,240. 3. Aggrieved by the assessment order, the assessee filed an appeal before the first appellate authority. The assessee had challenged the reopening of assessment as not valid and also disallowance/additions on the merits were also challenged. The Commissioner of Income-tax (Appeals) held that the reopening of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act was issued within a period of four years from the end of the relevant assessment year and hence the proviso to section 147 does not have application to the facts of the instant case. The Tribunal vide its order dated December 11, 2015 recalled its earlier order dated October 17, 2014. The relevant finding of the Tribunal in M. P. No. 22/Coch/2015 reads as follow : 5. We have heard the rival submissions and perused the material on record. The Tribunal in paragraph 4.4 of its order has observed that reassessment notice was issued beyond the period of 4 years from the end of the relevant assessment year. The Revenue has now filed a proof showing that the notice under section 148 has been served within the period of 4 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercials Ltd. v. Deputy CIT [2014] 362 ITR 403 (Bom); [2014] 267 CTR 228 (Bom) (iii) Vatika Ltd. v. ITO [2013] 357 ITR 170 (Delhi) (iv) Maruti Suzuki India Ltd. v. Deputy CIT [2013] 356 ITR 209 (Delhi) 6.1 The learned counsel had also relied on the judgment of the hon'ble apex court in the case of CIT v. Kelvinator of India Ltd. reported in [2010] 320 ITR 561 (SC) to contend that the reassessment done in the instant case is only a mere change of opinion. 6.2 The learned Departmental representative, on the other hand, supported the order of reassessment. 7. We have heard the rival submission and perused the material on record. The assessment was reopened for the following reasons : (i) Other income not offered for tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of depreciation on computer accessories at the rate of 60 per cent. The assessee had contended that all the necessary details on which the depreciation has been claimed has been furnished in the course of original assessment and therefore, there is no scope for reassessment. This contention of the asses see cannot be accepted in view of Explanation 1 to section 147, which states as follow : Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. 7.2 As mentioned earlier, since the Assessing Officer has not examined the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer in course of original assessment proceeding as regards the claim of depreciation on computer accessories. Technical know-how expenditure and royalty termination fee, whether it is to be allowed as revenue expenditure or capital expenditure and whether disallowance can be subject matter of reassessment has to be necessarily examined by the Commissioner of Income-tax (Appeals). In other words, it is for the Commissioner of Income-tax (Appeals) to conclude whether the additions are warranted on these three issues. It is ordered accordingly. 8. In the result, the appeal filed by the Revenue is allowed. C. O. No. 44/Coch/2014 9. In the cross-objection, the prayer of the assessee is that in the event the reopening is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
