2016 (5) TMI 583 - AT - Income Tax

Reopening of assessment - excess claim of depreciation which had resulted from the wrong claim of the brought forward depreciation as against the correct claim - whether it is an apparent arithmetic error or computational error? - Held that - In the present case to correct a simple apparent mistake which could have been rectified by the AO by exercising his power u/s 154 of the Act, the AO choose to re-open the entire assessment and thus assumed the unlimited jurisdiction and various additions were made apart from the excess claim of depreciation as recorded in the reasons u/s 148(2) of the Act which in our opinion is against the scheme provided in the Act. We find merits in the argument of the ld. AR Mr. Joshi that an effective and efficacious remedy available with the AO was u/s 154 of the Act to rectify the wrong claim by the assessee on account of excess unabsorbed depreciation claim which empowers the tax authorities including the AO to amend any order passed by them with a view to rectify any mistake apparent from the record. In the case of Hindustan Unilever Ltd. vs. Deputy Commissioner of Income-Tax (2010 (4) TMI 206 - BOMBAY HIGH COURT ) the Hon ble Bombay High court has clearly held that the revenue had an efficacious remedy open to it in the form of a rectification under section 154 for correcting a computational error and consequently recourse to the provisions of section 147 was not warranted. Also excessive claim on account of brought forward depreciation was sought to be rectified by the re-opening of the entire assessment is also against the ratio laid down by the Hon ble Jurisdictional High Court in the above decision. In the case of J.C. Thakkar vs. CIT 1955 (2) TMI 9 - BOMBAY HIGH COURT We, therefore annul and quash the re-opening of the assessment u/s 147 of the Act and consequent reassessment order without going into the merit of the case and . - Decided in favour of assessee

Summary

Issues Involved:
1. Reopening of assessment under section 148.
2. Set-off of brought forward unabsorbed depreciation.
3. Disallowance of certain expenses while computing Book Profit under section 115JB.

Issue-wise Detailed Analysis:

1. Reopening of Assessment under Section 148:
The primary issue in this case was whether the Assessing Officer (AO) was justified in reopening the assessment under section 148 of the Income Tax Act. The assessee had filed its return of income declaring its income at Rs. Nil and paid tax on book profit under section 115JB. The assessment was initially completed under section 143(3) and later reopened under section 147, citing an excessive claim of unabsorbed depreciation amounting to Rs. 1,68,28,559/-. The assessee argued that the reopening was unjustified as the error could have been rectified under section 154, which allows for the correction of apparent mistakes. The Tribunal found merit in the assessee's argument and held that the AO should have used the rectification powers under section 154 instead of reopening the entire assessment under section 147. The Tribunal quashed the reopening of the assessment, referencing the Bombay High Court decision in Hindustan Unilever Ltd. vs. Deputy Commissioner of Income-Tax, which established that computational errors should be corrected through rectification and not reassessment.

2. Set-off of Brought Forward Unabsorbed Depreciation:
The second issue concerned the set-off of brought forward unabsorbed depreciation from the assessment year 2001-02 against the business income for the assessment year 2006-07. The AO had disallowed the set-off, claiming that the loss had already been set off in the assessment year 2005-06. The Tribunal did not delve into the merits of this issue separately, as the reopening of the assessment itself was quashed, thereby rendering this point moot for the current proceedings.

3. Disallowance of Certain Expenses while Computing Book Profit under Section 115JB:
The third issue was the disallowance of Rs. 64,18,653/-, which included Fringe Benefit Tax, Wealth-tax, and Prior Period Expenses, while computing the Book Profit under section 115JB. The AO had included these amounts in the book profit calculation, which was upheld by the Commissioner of Income Tax (Appeals). However, since the Tribunal quashed the reopening of the assessment, the disallowance of these expenses was also rendered moot for the current proceedings.

Conclusion:
The Tribunal quashed the reopening of the assessment under section 147, holding that the AO should have rectified the computational error using section 154. Consequently, the Tribunal did not address the merits of the other issues raised, as the reopening itself was deemed invalid. The appeal of the assessee was allowed, and the reassessment order was annulled.