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TMI Blog2013 (10) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Earlier the grounds were narrative; hence, those were concised and through ground no.1 challenged the reopening of assessment u/s.147 of the IT Act. 3. The assessment order now before us was passed u/s. 143(3) r.w.s. 147 of the IT Act, dated 24.11.2008. As per paragraph 2, the AO has noted that, "on verification of the case records it was noticed that while computing the book profit for the A.Y. 2003-04, the assessee had claimed unabsorbed depreciation of Rs.257.97 lakhs which was accordingly allowed to the assessee. However, the assessee again claimed the same, i.e., unabsorbed depreciation of Rs.257.97 lakhs while computing the book profit for the A.Y. 2007-4-05 which was wrongly allowed to the assessee. Therefore, the case was re-ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of unabsorbed depreciation was already claimed by the company for the A.Y. 2003-04 for computation of book profit u/s. 115JB of the Act. Thus, there is escapement of income chargeable to tax to the extent of Rs.257.97 lakhs." 4. In the result, the AO has computed the tax liability u/s. 115JB as under: "Computation of tax liablility u/s. 115JB of IT Act Book Profit u/s. 115JB as per order u/s. 143(3) of the Act, dated 06.12.2006 Rs. 2,59,57,980/- Add: unabsorbed depreciation as discussed above Rs. 2,57,97,105/- Rs. 5,17,55,085/- 5. The assessee has challenged the reopening of the assessment before learned CIT(A). However that objection of the assessee was rejected as under: "The ground no.1 is against reopening of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine the calculation of unabsorbed depreciation for the purpose of computation of tax liability u/s.115JB of IT Act. The said discrepancy in the first assessment order has pointed out by the Revenue Department appears to be corrected. In the said assessment order, there is no mention at all about the computation of brought forward unabsorbed depreciation. In any case, 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. We, therefore, hold that the reopening of the assessment u/s. 147 r.w.s 148 was justifiable. This ground of the assessee is, therefore, dismissed. 6. Next ground is challenging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess loss was not there. Relying on such decisions does not help the appellant. The Supreme Court decision in the case of Apollo tyres relates to 115J in which no such adjustment was permissible. Therefore the decision does not help appellant's contention. Other decisions are also not on 115JB wherein this provision is enacted therefore these are not relevant to the issue. Considering the fact that 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." 7. After hearing both the sides and on due consideration of the facts of the case, we find no fallacy in the order of learned CIT(A), hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty in the following manner: "I have considered the facts of the case; penalty order and appellant's written submission. Assessing officer levied penalty on addition made in normal computation and also on addition of deferred tax liablility made under Section 115 JB. Income of the appellant is computed under section 115JB and therefore addition made in normal computation will not attract penalty in view of the jurisdictional ITAT decision in the case of CIT Vs. Bachubhai Doothwala Pvt. Ltd. Order dated 21.4.2011. In this case the ITAT has held that 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. Appellant also relied upon other decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the above discussion and the case laws cited, the question whether penalty can be imposed in respect of the assessment of total income under the normal provisions of the Act when ultimately the total income is determined u/s.115JA of the I.T. Act has been answered in favour of the assessee. In addition to the above details, before us, an order dated 21.5.2007 giving effect to the order of CIT(A)'s judgment-dated 30/04/2007 has been placed according to which in quantum appeal a relief of Rs.1.6,77,152/- was granted, hence, leaving behind the net taxable income only at of Rs.2,62,667/- against which there was brought forward depreciation of Rs.7,37,850/-, hence, the revised total income remained at NIL. It has also been brought to our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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