TMI Blog2021 (4) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... e do not find any infirmity in the order of the Ld.CIT (A) and uphold the same and dismiss the grounds of appeal of the revenue. - ITA No. 5252/Mum/2019 (A.Y: 2008-09) - - - Dated:- 15-2-2021 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER Appellant by: Shri Vijay Kumar Menon, DR Respondent by: Shri J.D. Mistri, AR ORDER PER PAVAN KUMAR GADALE: The revenue has filed the appeal against the order of the Commissioner of Income Tax (Appeals) -4, Mumbai, passed u/s. 143 (3) r.w.s. 147 and 250 of the Income Tax Act, 1961. 2. The revenue has raised the following grounds of appeal:- i) Whether on the facts, in the circumstances of the case and as per law, the Ld. CIT(A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was completed u/s 143 (3) of the Act on 27.12.2010 with assessed total loss at ₹ 778,51,83,680/-. Further, the assessment was reopened u/s 147 of the Act and the order u/s 143 (3) r.w.s.147 of the Act was passed on 15.03.2013 determining total loss of ₹ 778,29,79,750/-. Subsequently, the A.O. has reason to believe that, the income has escaped assessment as the assessee company was allowed excess depreciation on tangible assets @60% rate as against @25%. Therefore, notice u/sec148 of the Act was issued, where as the assessee company vide its letter dated 09.04.2015 submitted to treat the return of income filed on 27.09.2008 u/s 139(1) of the Act as due compliance of the notice and further the reasons for reopening of the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound of appeal of the assessee and partly allowed the assessee appeal. Aggrieved by the CIT(A) order, the revenue has filed the appeal before the Hon ble Tribunal. At the time of hearing, the contentions of the Ld. DR are that the Ld.CIT(A) has erred in granting relief as the licenses are to be considered as intangible assets and depreciation rate @ 25% has to be applied and relied on the order of the assessing officer. Contra, theLd.AR supported the order of the Ld. CIT(A) and substantiated his arguments relying on the judicial decisions and prayed for dismissal of the revenue s appeal. 5. We have heard the rival submissions and perused the material on record. The Ld.DR emphasized that the Ld.CIT (A) has erred in directing depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant stated that in the course of first reassessment, after examining the rate of depreciation applicable to computer software, depreciation at full 60%, as claimed, was granted in the first reassessment order passed by Ld. AO u/s 143(3) r.w.s.147. Further AY 2008-09 was again reopened for the second time vide notice dated 27 March 2015 pursuant to which the assessee wrote that return filed on 27 September 2008. subject to the modification of total income as per assessment order under Section 143(3) dated 27 December 2010 and reassessment order under Section 143(3) read with Section 147 dated 15 March 2013, be treated as return filed pursuant to second reopening notice. Thereafter. reasons for second reopening were asked by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration without giver any specific reason to do so. Software is a special block of asset on which depreciation @ 60% was accepted by AO in immediately preceding years and succeeding years. No change without any specific reason can he allowed. Hence, this ground of appeal of the assessee is allowed. 5. The Ld.DR could not controvert the observations of the Ld. CIT (A) with any new evidence or information but relied on the order of the Assessing officer. We find the Ld.CIT(A) considered the facts of granting of deprecition@60% rate in the earlier and subsequent assessment years by the revenue, provisions of law, and allowed the claim of the Assessee. Accordingly, we do not find any infirmity in the order of the Ld.CIT (A) and uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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