9911796707
TMI Blog2023 (3) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Assessee has settled the dispute under Vivad se Vishwas scheme. 2. The Ld. AR submitted that the Assessee has also raised a legal ground challenging the re-opening of the assessment u/s 148 of the Act. Accordingly, he prayed the legal ground may kindly be heard and the adjudicated by the bench. 3. The Ld.AR submitted that theassessment for the year under the consideration was originally completed by the Assessing Officer u/s 143(3) of the Act on 18.06.2016. In the return of income the Assessee had claimed software expanses of 2.61 crore, as revenue expenditure. The Assessing Officer held that the software expanses are capital in nature and the accordingly, disallowed the above said claim. However, the Assessing Officer allowed dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned re-opening assessment order may be held as bad. 6. The Ld. DR, on the contrary, submitted that the Assessing Officer has re-opened the assessment on proper reasoning. 7. We heard rival contentions and perused the record. We notice that the only reason for reopening of assessment is to revise the rate of depreciation allowable on the software capitalized by the AO. As noticed earlier, the AO had allowed depreciation @ 60% in the original assessment proceedings and the reopening of assessment was done only to restrict the rate of depreciation to 25%. The question is whether the decision of AO to revise the depreciation can be said to be mere change of opinion. If the answer is Yes, then the reopening of assessment is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, 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 ................. 7. In paragraph no. 2, the Assessing Officer 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inferences, to draw proper inferences being the duty imposed on the Income-tax Officer. Therefore, since the details of computer software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 rejecting the objections of the Petitioner (Exh. 'I') and after going through the same and examining the question of legality thereof to quash, cancel and set aside the impugned notice u/s. 148 of the Act dated 31st March, 2021 (Ex. 'E') and the order dated 20th December, 2021 rejecting the objections of the Petitioner (Ex. 'I')." 11. Petition disposed." 9. Facts being identical, following the above said decision of the jurisdictional High Court, we hold that the assessing officer has reopened the assessment of the year under consideration on mere change of opinion only and the same is not permitted under the law. Accordingly, we hold that the reopening of assessment is bad in law and accordingly the impugned as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
