2021 (4) TMI 68 - HC - Income Tax

Reopening of assessment u/s 147 - Reassessment initiated after four years - assessee is not eligible to claim the depreciation and additional depreciation under Section 32 of the Act as auditor of the assessee had not mentioned the date of put to use assets, which had been acquired during the year under consideration - HELD THAT - From the letter dated 28.11.2014 and the explanation dated 22.12.2014 in support of the claim of depreciation under Section 32 of the Act, it cannot be stated that the assessee failed to disclose the necessary dates of put to use for assets acquired during the year under consideration. The assessee had furnished the details of the additions before 30.9.2011 and after 30.9.2011 which clearly established that there was no suppression of true facts with regard to date of use of the assets. Even this very facts having been admitted by the revenue while passing the order of disposing the objection raised by the assessee. The technical mistake of the auditor detected by the revenue is that he failed to mention the date in the Form 3CD at the time of submitting the report. We are of the view that at the relevant time, the then Assessing Officer had examined the issue at length and did not disallow the depreciation claim. Therefore, in our view, now on the same set of facts and material, which were earlier examined by the Assessing Officer, the initiation of the reassessment proceedings under Section 147 by issuing notice is nothing but a change of opinion in the hands of the Assessing Officer. Applicability of principle of change of opinion not applicable in the present case as in the previous assessment proceedings the issue of depreciation was not dealt with by the Assessing Officer while passing the order - We do not agree with the contention raised by the learned counsel for the revenue. In our opinion the issue of depreciation examined by the erstwhile Assessing Officer is enough to invoke the principle of change of opinion. In this context, we may refer and rely of the judgment of this Court in case of Gujarat Power Corporation Ltd Vs. ACIT 2012 (9) TMI 69 - GUJARAT HIGH COURT wherein, it was held that merely because of the Assessing Officer does not set out the details reasons for not making the disallowance, it cannot be inferred that the Assessing Officer has not formed an opinion on the issue. So far as the formation of opinion is concerned, all that is necessary, the matter should have been examined by the Assessing Officer. In the case on hand, upon disclosure made by the assessee with regard to the date for put to use of the assets, the Assessing Officer thought fit not to disallow the depreciation claimed by the assessee. Therefore, when primary materials having been disclosed bonafide, a mere technical mistake committed by the auditor, could not be said to be an omission or failure to disclose fully and truly all material facts for the assessment by the assessee. Therefore, the contention raised by the revenue that there was a nondisclosure of the material facts by the assessee has no merits. In view of the aforesaid discussions made hereinabove and reasons thereof, we hold that the Assessing Officer is not justified in reopening the assessment of the assessee and he could not have issued the impugned notice under Section 148 of the Act and initiation of proceedings is without jurisdiction and contrary to law - Decided in favour of assessee.

Summary

Issues Involved:
1. Failure to disclose fully and truly all material facts necessary for assessment.
2. Reopening of assessment based on change of opinion.
3. Validity of reasons to believe that income chargeable to tax escaped assessment.

Issue-wise Detailed Analysis:

1. Failure to disclose fully and truly all material facts necessary for assessment:
The writ applicant, a company, filed its return for the A.Y. 2012-13, declaring a loss and claiming depreciation on new fixed assets. The assessment was initially completed under Section 143(3) of the Income Tax Act, 1961. The Assessing Officer later issued a notice under Section 148 to reopen the assessment, alleging that the company had not disclosed the date on which the new assets were put to use, as required in the auditor's report (Form 3CD). This omission led the Assessing Officer to believe that the assets were not put to use during the year, making the depreciation claim invalid. However, the court found that the company had provided all necessary details during the original assessment, including purchase bills and evidence of the dates the assets were put to use. The court concluded that there was no failure on the part of the company to disclose material facts fully and truly.

2. Reopening of assessment based on change of opinion:
The court examined whether the reopening of the assessment was based on a change of opinion. It was noted that during the original assessment, the Assessing Officer had thoroughly examined the details provided by the company, including the depreciation claim. The court observed that the reopening was primarily based on the same set of facts and materials that were already scrutinized during the original assessment. The court cited the case of Gujarat Power Corporation Ltd Vs. ACIT, which held that reopening an assessment merely due to a change of opinion is impermissible. The court concluded that the reopening of the assessment in this case was indeed based on a change of opinion, which is not allowed under the law.

3. Validity of reasons to believe that income chargeable to tax escaped assessment:
The Assessing Officer's reasons for reopening the assessment included the belief that the company had not put the new assets to use during the year, thus making the depreciation claim invalid. The court found that the company had disclosed all relevant details during the original assessment, and the omission by the auditor to mention the date in Form 3CD was a technical mistake. The court referred to the case of Calcutta Discount Company Ltd, where it was held that once all primary facts are disclosed, it is the Assessing Officer's responsibility to draw inferences. The court determined that the primary facts were disclosed, and the technical mistake by the auditor did not constitute a failure to disclose material facts. Consequently, the court held that the reasons to believe that income had escaped assessment were not valid.

Conclusion:
The court concluded that the reopening of the assessment was not justified and was based on a change of opinion. The court quashed the notice issued under Section 148 and set aside the subsequent assessment order. The court emphasized that the technical mistake by the auditor did not amount to a failure to disclose material facts, and the company had fully complied with the disclosure requirements during the original assessment.