2013 (10) TMI 930 - AT - Income Tax

Reopening of Assessment u/s 147 Held that - Prima-facie income has escaped assessment for which reopening were justified - There is no question of change of opinion on this issue since earlier assessing officer did not express any opinion on the issue - Revenue pleaded that the AO has recorded his satisfaction before the reopening of the assessment - That satisfaction was duly communicated during the course of assessment proceedings - attention has also been drawn on the order passed u/s. 143(3), dated 6.12.2006 for A.Y. 2004-05 for the purpose that the AO had failed to examine the calculation of unabsorbed depreciation for the purpose of computation of tax liability u/s.115JB of IT Act - The discrepancy in the first assessment order has pointed out by the Revenue Department appears to be corrected - there is no mention at all about the computation of brought forward unabsorbed depreciation - once the admitted factual position was that the amount of unabsorbed depreciation had already been exhausted in A.Y. 2003-04 then legally the assessee is not entitled for double claim in A.Y. 2004-05 - the reopening of the assessment u/s. 147 r.w. Section 148 was justifiable Decided against Assessee. Adjustment of unabsorbed depreciation while computing the book profit u/s. 115JB Held that - Wherever either of the figures is nil, no deduction is to be made from book profit - Under the clear provisions, assessing officer did not allow deduction of unabsorbed depreciation in the current assessment year on the ground that unabsorbed depreciation was fully utilized and reduced from the book profit in assessment year 2003-04 and therefore there is no unabsorbed depreciation available which can be reduced in this year - Since unabsorbed depreciation as per books is nil for assessment year 2004- 05, it will not be permissible to reduce any amount on account of unabsorbed depreciation or brought forward business loss from book profit - there is no brought forward unabsorbed depreciation available in assessment year 2004-05, there is no question of reducing the same from book profit - The action of the assessing officer is therefore confirmed Decided against Assessee. Deletion of Penalty u/s 271 (1)(c) Concealment of Income Held that - Following COMMISSIONER OF INCOME-TAX Versus RELIANCE PETROPRODUCTS PVT. LTD. 2010 (3) TMI 80 - SUPREME COURT - Income of the appellant is computed under section 115JB and therefore addition made in normal computation will not attract penalty - concealment of income will not be there once the income is assessed on the book profit u/s. 115JA and not under the normal provisions of the Act - Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty under section 271(1)(c) - A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee - Such a claim made in the return cannot amount to furnishing inaccurate particulars Decided against the revenue.

Summary

Issues involved:
1. Reopening of assessment under section 147 of the IT Act.
2. Adjustment of unabsorbed depreciation while computing book profit under section 115JB.
3. Deletion of penalty under section 271(1)(c) of the IT Act.

Issue 1: Reopening of assessment under section 147 of the IT Act
The appeal was filed challenging the reopening of assessment under section 147 of the IT Act. The AO noted that the assessee claimed unabsorbed depreciation twice for different assessment years. The AO issued a show cause notice regarding the addition of unabsorbed depreciation while calculating book profit under section 115JB for a specific assessment year. The CIT(A) rejected the objection of the assessee, stating that income had escaped assessment justifiably. The ITAT upheld the decision, emphasizing that the assessee was not entitled to a double claim of unabsorbed depreciation. The reopening of assessment under section 147 was deemed justifiable.

Issue 2: Adjustment of unabsorbed depreciation while computing book profit under section 115JB
The next ground challenged the adjustment of unabsorbed depreciation while computing book profit under section 115JB. The CIT(A) held that the deduction of unabsorbed depreciation was not permissible as it had already been utilized in a prior assessment year. The ITAT confirmed the CIT(A)'s order, dismissing the ground of the assessee. The legal provisions were analyzed, and it was concluded that the assessing officer's action was justified in not allowing the deduction of unabsorbed depreciation in the current assessment year.

Issue 3: Deletion of penalty under section 271(1)(c) of the IT Act
The Revenue's appeal involved the deletion of a penalty levied under section 271(1)(c) of the IT Act. The penalty was imposed due to alleged evasion of tax by filing inaccurate particulars. The CIT(A) deleted the penalty, citing various decisions in favor of the assessee. The ITAT upheld the CIT(A)'s decision, stating that there was no valid reason for imposing the concealment penalty. The grounds of the Revenue were dismissed, and the penalty deletion was affirmed.

In conclusion, the ITAT upheld the decisions regarding the reopening of assessment, adjustment of unabsorbed depreciation, and deletion of penalty under section 271(1)(c) of the IT Act, thereby dismissing the appeals and cross-objection.