TMI Blog2022 (2) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Commissioner of Income Tax [ 2014 (2) TMI 659 - BOMBAY HIGH COURT] once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. Claiming 15% depreciation on the block of office equipments against allowable rate of 10% - There can be no non disclosure on the part of petitioner at all. The assessment order dated 29th December 2009 contains a computation of depreciation - there can never be a situation of failure to disclose truly and fully all material facts by petitioner. AO stated that claim of assessee is not acceptable and the depreciation is recomputed as per the stand taken by the Department in earlier years as the issue has not yet been decided at various appellate stages - The Hon ble Apex Court in Indian Eastern Newspaper Society[ 1979 (8) TMI 1 - SUPREME COURT] has held that even if according to respondent no.1 there was an error discovered on a reconsiderati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JB of the Act. The case was selected for scrutiny and order under Section 143(3) of the Act was passed on 29th December 2009 assessing total income of ₹ 16,17,34,217/- under normal provisions and book profits of ₹ 83,05,88,891/- under Section 115JB of the Act. 3. Petitioner received a notice dated 28th March 2013 from respondent no.1 alleging that respondent no.1 had reasons to believe that petitioner s income chargeable to tax for A.Y.-2006-2007 has escaped assessment within the meaning of Section 147 of the Act. Subsequently, petitioner also received, vide letter dated 16th May 2013 from respondent no.1, the reasons for reopening under Section 148. The reasons are dated 28th March 2013. Petitioner filed its objections and respondent no.1 passed an order dated 14th February 2014 rejecting the objections. 4. Mr. Mistri submitted that before a notice under Section 148 is issued, an approval of the concerned authority is required to be taken under Section 151 of the Act. Mr. Mistri submitted that the approval that has been provided to petitioner and copy whereof has been annexed to the petition is dated 26th March 2013 and has been received by respondent no.1 on 28t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate any such non disclosure. Mr. Mistri also submitted that reasons recorded only indicate change of mind which cannot be a basis for reopening. Mr. Mistri also submitted that all the three points in the reasons have already considered during the assessment proceedings and even if the assessment order is silent on one or two points, still as held by this court time and again, the Assessing Officer should be considered to have applied his mind, once a query is raised and answers are provided. 7. Mr. Suresh Kumar in his submissions justified the reopening and went into the merits of the case. In short, he reiterated what is recorded in the reasons. 8. The reasons for reopening raised three issues and it read as under:- . 1. During the year assessee made onetime payment to M/s Atul Ltd to get itself released and discharged in respect of all the obligations of the company as lessee under the lease deeds including all the enviornmental claim or liabilities, if any, related to the surrendered leased land. Thus the payment made is capital in nature, as the benefit derived by the assessee is enduring in nature as the unexpired lease portion of the lease hold land surre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond ground, that is claiming 15% depreciation on the block of office equipments against allowable rate of 10%, there can be no non disclosure on the part of petitioner at all. The assessment order dated 29th December 2009 contains a computation of depreciation. The Assessing Officer in the assessment order states; I have perused assessee s contention and the facts on this issue. However, as held above, the claim of assessee is not acceptable and the depreciation is recomputed as per the stand taken by the Department in earlier years as the issue has not yet been decided at various appellate stages. The annexure-1 to this order gives the computation of depreciation which comes out to be ₹ 4,79,67,132/-. In view of the above, assessee s claim for depreciation will be reduced by ₹ 2,40,941/- , and calculates depreciation at 15% for office equipments. Therefore, there can never be a situation of failure to disclose truly and fully all material facts by petitioner. The Hon ble Apex Court in Indian Eastern Newspaper Society vs. Commissioner of Income-tax [1979] 119 ITR 996 has held that even if according to respondent no.1 there was an error discovered on a reconsidera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions for employee retention strategy and was rightly considered as disallowable in computing business income and hence the amount has not been separately disallowed as prior period expenditure. Therefore, once again this has been subject of consideration during the assessment proceedings and as noted earlier, once a query raised during the assessment proceeding and assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment. Change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment. 13. For reasons recorded above, petition is allowed in terms of prayer clause (a) which reads as under: (a) that this Hon ble Court be pleased to issue a writ of certiorari or any other writ order or direction under Article 226 of the Constitution of India calling for the records of the case leading to the issue of the impugned notice and passing of the impugned order and after going through the same and examining the question of legality thereof, quash, cancel and set aside the impugned notice (Exhibit J) and impugned order (Exhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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