TMI Blog2021 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... mation of the belief that income chargeable to tax has escaped assessment because of the failure on the part of the assessee. Both the conditions must coexist in order to confer jurisdiction on the assessing officer. In the present case, the reasons recorded clearly reveals that all facts were available before the Ld.AO, when he completed the original assessment proceedings under section 143(3) of the Act, and no new materials were available on record for reopening the present assessment after expiry of 4 years. Initiation of reassessment proceedings beyond 4 years will have to be held invalid for the reason that the reasons recorded by the Ld.AO, do not spell out that the escapement of income was due to assessee not fully and trul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als facts necessary for assessment is not correct. 3. The order of CIT-A holding that reopening is valid based on the same facts which already available in record and no new material has come in possession after completion of assessment u/s 143(3). 4. The order of CIT-A in not following CBDT instructions No-1425, dt.i6.i.3.98 with respect to hire charges which includes interest payable does not come under purview of interest u/s 2(28A) of the I.T. Act for consequent disallowance U/s 40(a)(ia). 5. The order of CIT-A in holding that form 26A is not complete with respect to Rule 31ACB of the I.T. Rules is not correct since, the appellant requested time to file the requisite form in the absence of allotment of TAN. 6. The CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee through his authorised representative filed letter dated 18/02/2015 on 19/02/2015, wherein it was mentioned that assessee is in the business of C F Agency for cement companies like M/s India Cement India Ltd., and M/s. Zuari Cements Ltd. Ld. AO noted that, as per provisions of section 194A of the Act, assessee was required to deduct TDS for payment of interest on nonbanking financial companies, and hence disallowance of interest payment as per provisions of section 40 (a) (ia) of the Act was made. The Ld.AO also restricted depreciation claimed at 15% as against 30% claimed by assessee. 3. Aggrieved by the order of Ld.AO, assessee filed appeal before Ld.CIT(A). 4. Before Ld.CIT(A), assessee alleged that Ld.AO has not recorded s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s L T reported in (2020) 113 taxmann.com 47, which is upheld by Hon ble Supreme Court by dismissing the SLP filed by revenue in PCIT vs L T Ltd., reported in (2020) 268 taxman 390. Decision of Hon ble Karnataka High Court in case of CIT vs Chaitanya Properties Pvt. Ltd., in ITA No. 205/2016 by order dated 16/02/2016 7. On the contrary, the Ld.Sr.DR submitted that, the case was referred for limited scrutiny, and therefore the issues that were to be considered by the Ld.AO are not available. He therefore supported the orders passed by authorities below. 8. We have perused the submissions advanced by both sides in light of records placed before us. 9. It is established law that to reopen an assessment beyond a period of 4 years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linked. Therefore, the assessee has used trucks/lorries to his own business. He has not rendered trucks/lorries for hiring business during the year. Instead he has used these vehicles for his own business purpose. But, he has claimed depreciation 30% on these vehicles. As per Income Tax Rules higher rate of depreciation i.e. 30% can be claimed for Motor Buses, Motor Lorries and motor taxis used in a business of running them on hire only. In the assessee case, trucks (Motor Lorries) were used for his business. Therefore, the assessee is eligible to claim depreciation @ 15% only and not at higher rate @ 30%. Therefore, I have reason to believe that income chargeable to tax has escaped for the A.Y. 2009-10 in the assessee's case withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngible material came to the possession of the Ld.AO. Hon ble Karnataka High Court in case of CIT vs Hardware Trading Co. reported in 248 ITR 673 has followed the said ratio of Hon ble Supreme Court in case of CIT vs Kelvinator of India Ltd (supra). Before us, Ld. A.R. placed reliance on decision of Hon ble Karnataka High Court in case of Infosys Ltd vs DCIT reported in (2019) 416 ITR 226, wherein Canteen of decisions of Hon ble High Courts and Hon ble Supreme Court have been referred to an identical proposition. 15. In the present case, the reasons recorded clearly reveals that all facts were available before the Ld.AO, when he completed the original assessment proceedings under section 143(3) of the Act, and no new materials were avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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