9911796707
TMI Blog2015 (8) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. That the assessee claimed depreciation at 30% on dumpers, lorries etc. amounting to Rs. 3,32,84,568/-. The case was selected for scrutiny assessment by issuing the notice under Section 143(2) of the Act. After making inquiry the Assessing Officer made addition of Rs. 88,989/- and assessed the income at Rs. 64,87,310/- by allowing the depreciation claimed by the assessee at 30% on dumpers, lorries etc. amounting to Rs. 3,32,84,568/-. [2.1] That thereafter the petitioner has been served with the impugned notice dated 07.03.2014 under Section 148 of the Act for reassessing the income of the petitioner for AY 2009-10. On the request made by the petitioner - assessee the petitioner has been served with the reasons recorded by the Assessing Officer while reopening the assessment for the AY 2009-10 mainly on the ground that the assessee was not entitled to the depreciation at 30% on motor vehicles and the normal rate of depreciation at 15% was allowable to the assessee being a contractor and therefore, an amount of Rs. 1,66,42,284/- has escaped assessment [depreciation being restricted to 15% as against 30% as claimed]. That the petitioner raised objections against the reopening p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries Ltd vs. Assistant Commissioner of Income Tax reported in [2014] 49 taxmann.com 15 (Gujarat), it is requested to allow the present Special Civil Application and quash and set aside the impugned reopening of the assessment for AY 2009-10. [4.0] Present petition is opposed by Shri Pranav G. Desai, learned Advocate appearing on behalf of the Revenue. He has heavily relied upon the affidavit in reply filed on behalf of the respondent. [4.1] Shri Desai, learned advocate appearing on behalf of the Revenue has vehemently submitted that the impugned reopening proceedings to reopen the assessment for AY 2009-10 is absolutely just and proper and in consonance with Section 147 of the Act. It is vehemently submitted that in the present case after forming an independent opinion that Rs. 1,66,42,284/- has escaped assessment due to the failure on the part of the assessee to declare fully and truly all facts necessary for assessment and after recording the reasons that the aforesaid income had escaped assessment, the Assessing Officer has issued the impugned notice under section 148 of the Act. It is submitted that it was found that though the assessee was not entitled to the higher rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is reopened on the basis of the objection raised by the audit party and on the information received by the Assessing Officer pursuant to the audit memo and/or the objections raised by the audit party, after forming an opinion, the reopening of assessment proceedings is permissible. Making above submissions and relying upon above decisions it is requested to dismiss the present petition. [5.0] Heard learned advocates appearing on behalf of respective parties at length. At the outset it is required to be noted that what is challenged in the present Special Civil Application is the impugned notice under section 148 of the Act by which the assessment for AY 2009-10 has been reopened. The reasons recorded for reopening of the assessment proceedings for the AY 2009-10 reads as under: "Reasons recorded for reopening of the assessee (M/s. Gaurav Contract Co. A.Y. 2009-10) "The Assessee firm had filed return of income of Rs. 63,98,320/- for A.Y. 200910 on 28.09.2009. The case was selected for scrutiny and the assessment was completed u/s 143(3) of the I.T. Act with total income Assessed at Rs. 64,87,310/- The Assessee firm is engaged in the business as heavy earth movers and mining con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent formation of opinion by the Assessing Officer that the income has escaped assessment, we called upon the Revenue to produce the relevant file/s and Shri Desai, learned Advocate appearing on behalf of the Revenue has produce the file/s before this Court for perusal. [5.3] From the file it appears that the case was audited by the Revenue audit party. The audit party issued LAR No.IT/2403 Para No.01 vide letter dated 07.12.2012 and audit party raised the query with respect to the depreciation claimed by the assessee at 30%. From the record it appears that the Assessing Officer submitted its reply to the aforesaid audit query and justified the depreciation claimed by the assessee at the higher rate i.e. 30% on the dumpers and justified allowing such depreciation and requested to drop the audit objection / query. However, thereafter again the audit party maintained their objection and observed that the Assessing Officer made evasive reply. That only thereafter the Assessing Officer had decided to reopen the assessment. That prior to the issuance of the notice under Section 148 of the Act, the Assessing Officer had sought the approval from the higher authority i.e. the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 147 of the Act, the Assessing Officer still had maintained that the audit objection raised by the audit party is not acceptable. Therefore, the formation of the opinion by the Assessing Officer and his reason to believe that there is any escapement of income to the tune of Rs. 1,66,42,284/- for AY 2009-10 has been vitiated. If aforesaid para 4 would not have been there and even on the basis of the audit objection and/or considering the audit objection if the Assessing Officer had formed an opinion and/or reason to believe that the income had escaped assessment in that case the reopening of the assessment might be permissible. However, in the present case as observed hereinabove even while sending the proposal to the higher authority to grant the approval for initiation of the reassessment proceedings, he maintained that the audit objection raised by the audit party is not acceptable. Therefore, in the facts and circumstances of the case, the formation of the opinion by the Assessing Officer while reopening the assessment proceedings and his reason to believe that the income has escaped the assessment has been vitiated and therefore, the reopening of assessment proceeding for AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e chargeable to tax has escaped assessment. From the correspondence between the Assessing Officer and the higher authority it appears that though the Assessing Officer maintains that the audit objection raised by the audit party is not correct, however as the amount involved is very high as mentioned by the audit party and to safeguard the interest of the Revenue and the guidelines issued the reassessment proceedings have been initiated. Therefore, as such the formation of the opinion by the Assessing Officer that the income chargeable to tax has escaped assessment has been vitiated and therefore, the impugned reopening of the assessment cannot be sustained and the same deserves to be quashed and set aside. [6.0] In view of the above and for the reasons stated above, present petition succeeds. Impugned notice dated 07.03.2014 issued under section 148 of the Income Tax Act to reopen the assessment for AY 2009-10 is hereby quashed and set aside and consequently the reassessment proceeding for AY 2009-10 are hereby quashed and set aside on the aforesaid ground alone. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
