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TMI Blog2012 (4) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the reopening under Section 147 of the Act - the tribunal has not examined and dealt with the said aspect as mandated and required - accept the appeal by the Revenue and pass an order of remand directing the tribunal to decide the issue afresh - ITA Nos. 1379/2009 & 1410/2009 - - - Dated:- 29-2-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V.EASWAR, JJ. For Appellant: Mr. Sanjeev Sabharwal, Sr. Standing Counsel. For Respondent: Mr. C.S. Aggarwal, Sr. Advocate with Mr. Rajiv Saxena, Advocate. O R D E R Heard. 2. Admit. 3. The following substantial question of law is framed:- Whether the Income Tax Appellate Tribunal was right in holding that exercise of jurisdiction by the Assessing Officer under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly been claimed and allowed. (b)The assessee had claimed deduction u/s 80IA amounting to Rs. 74,89,845/- resulting to operation of ship Deep Sea Matrdrill. This deduction is not admissible under the provisions of Section 80-I(3) if the ship was owned by a person resident in India and used it in Indian territorial waters prior to acquisition. From the perusal of record, it is seen that this ship was purchased by the assessee company from the earlier owner who was operating it in Indian territorial waters prior to assessment year 1993-94. Further this ship was used for drilling exploration purposes, therefore, the deduction u/s 80IA is not admissible on such drilling rig. Therefore the deduction u/s 80IA was wrongly claimed and allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argeable to tax has escaped assessment for the assessment year 2001-02. 7. The tribunal by the impugned order, as is apparent from the question of law, has held that the aforesaid reasons to believe do not justify reopening and satisfy the requirements under Section 147/148 of the Act. 8. With regard to reasons (a), (b) and (c), the tribunal has observed that these issues were examined at the time of original assessment and, therefore, amount to change of opinion. With regard to reason (e), the tribunal has relied upon the proviso to Section 14A and held that reopening is not permissible under the said Section for ground (e). With regard to ground (f), the tribunal has observed that the schedule of depreciation clearly shows that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has drawn our attention to the order dated 7th December, 2011, which reads as under:- Vide order dated 22nd December, 2009 notice was issued in respect of ground d. It is noticed that ground e pertains to proviso to Section 14A, which was introduced and brought into the statute book by the Finance Act, 2002. The effect of the said proviso was examined by this Court in W.P. (C) No. 9036/2007, Honda Siel Power Products Ltd. vs. DCIT Anr. Ld. counsel for the parties will examine the said decision and whether it will apply to the facts of the present case. Relist this appeal for hearing and final disposal on 15th February, 2012. 12. He has also referred to the decision of this Court in Honda Siel Power Products Ltd. (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reply has been furnished by the assessing officer on 07.02.2006. After seeking additional time the appellant filed reply to the report submitted by the DCIT on 23.2006(sic) in which various objection have been raised regarding reopening of the assessment as well as claim of deduction made under Section 33 AC and 80 IA. On 24.02.2006 the assessing officer replied to the preliminary objections regarding reassessment as well as claim of deduction made under Section 33 AC and 80 IA. On 24.02.2006 the assessing officer replied to the preliminary objections regarding reassessment proceedings by providing an opportunity on 27.2.2006 the appellant requested for on 27.2.2006 providing copy of observation and directions made by Additional Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is entitled for depreciation @ 12.5% only prevails. I uphold the decision of the Assessing Officer to allow the depreciation of 121.5% bon the pant(sic) and machineries which were added after September, 2000. Appellant s appeal on this ground stands dismissed. 15. The tribunal in the impugned order in paragraph 12 has dealt with the said contention and observed as under: 12. In regard to the reasons recorded in clause (d), it is noticed that the reasons also do not show the fresh information which has come to the possession of the AO to show that the plant and machinery has been added after September, 2000 but on which depreciation has been claimed 16. This is the only discussion by the tribunal on the said aspect in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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