TMI Blog2022 (4) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... ully all material facts. In our view, it is only made with an attempt to overcome restrictions in re-opening as per proviso to Section 147 of the Act. AO admits that in the Note 8 list of fixed assets show that during the year computer software was added and classified under the category intangible asset. According to the AO because it is intangible asset, assessee could have claimed depreciation only at 25% and not 60%. We ask ourselves what is not disclosed? - AO states it has been disclosed in the note to the Balance Sheet and it has been shown as intangible asset and after considering allowed depreciation during the original assessment proceeding at 60%. During the assessment proceedings petitioner even provided, vide letter dated 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Reasons recorded the Assessing Officer admits that it is his change of opinion based on the same primary facts which have been considered by the Assessing Officer to complete original assessment and we say this because in paragraph no.4 of the reasons it is stated Assessee has claimed and department allowed depreciation @ 60 percent - Decided in favour of assessee. - WRIT PETITION NO. 1805 OF 2022 - - - Dated:- 6-4-2022 - K.R. SHRIRAM N. R. BORKAR, JJ. Mr. S. Sriram i/b Mr. Sriram Sridharan for Petitioner. Mr. Suresh Kumar for Respondents. P.C. : 1. Petitioner has set up an energy exchange through an electronic platform to facilitate spot trading of power/electricity and renewable energy certificates. Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Hon ble Supreme Court of India. 5. Now, coming to the reasons, the reasons recorded clearly indicate that re-opening is proposed on the basis of change of opinion which is not permissible and the reasons do not disclose that there were non disclosure of material fact by petitioner though there is general statement made that petitioner s income has escaped assessment on account of failure on the part of petitioner to disclose truly and fully all material facts. In our view, it is only made with an attempt to overcome restrictions in re-opening as per proviso to Section 147 of the Act. 6. Paragraph nos.2, 3 and 4 of the reasons recorded reads as under : 2. On perusal of the records it is seen that the assessee had acquired sof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Depreciation available (25%) ₹ 2,15,62,922 Written down value as on 31.03.12 ₹ 8,62,51,686 Written down value as on 31.03.13 ₹ 6,46,88,764 4. Assesse had claimed and department allowed depreciation @60 percent (₹ 5,17,51,012) instead of 25 percent (₹ 2,15,62,922) resulting excess depreciation to the extent of ₹ 3,01,88,090 leading to tax effect of ₹ 97,94,525 (tax 30% ₹ 90,56,427 + s.c. 5% ₹ 4,52,821 + cess 3% ₹ 2,85,277). 7. In paragraph no.2, the Assessing Officer admits that in the Note 8 list of fixed assets show that during the year computer softw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discovered the legislature has put in the explanation to Section 34(1) of the Act. The duty however, does not extend beyond the full and truthful disclosure of all primary facts. Once all the primary facts are before the assessing authority, he requires further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. If from primary facts more inferences than one could be drawn, it would not be possible to say that the assessee should have drawn any particular inference and communicated it to the assessing authority. The explanation does not have the effect of enlarging the section, by casting a duty on the assessee to disclose inferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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