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TMI Blog2016 (5) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri S. S. Viswanethra Ravi, Judicial Member For the Appellant : Shri Rajat Kr. Kureel, JCIT, ld.Sr.DR For the Respondent : Shri S.K. Tulsiyan, Advocate, ld.AR ORDER Shri S. S. Viswanethra Ravi, JM The appeal of the revenue and cross objection of the assessee for A.Y 2003-04 are arising out of the order of the Learned CIT(A),Central-I, Kolkata. ITA No. 2074/Kol/2010 2. In this appeal, the revenue has raised the following sole ground of appeal:- 1. That the ld. CIT(A) has erred on facts and in law in annulling the assessment order u/s. 147/143(3) of the I.T Act, 1961 for A.Yr. 2003-04 stating that the precondition for invoking the proviso to Section 147 was not satisfied without considering the provision of Explanation (1) below the said proviso as the excess claim of depreciation was discovered with due diligence on minute scrutiny of the details furnished by the assessee. C.O No.181/Kol/2010 (ITA No. 2074/Kol/2010 A.Y 2003-04) 3. In this C.O the assessee has raised following ground effective:- 1. For that in view of the facts and circumstances of the case the Ld. CIT(A) was wholly correct and justified in cancelling the re-assessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,09,11,055/-for its Motihari Factory. Such claim of depreciation to the extent of ₹ 74,69,834/- was disallowed for non production of any evidence showing acquisition of plant machinery. Subsequently, it was observed by the AO that depreciation claim to the tune of ₹ 34,41,221/- was wrongly allowed as deduction. The ld.AR of the assessee submitted that the income has been shown from lease out of the machinery. Having not satisfied with the said submissions, the AO was of the view that the assessee claimed excess depreciation to the tune of ₹ 34,41,221/- and added the same to the total income of the assessee. 7. The AO further noticed in the Schedule D as reflected therein that an amount of ₹ 9,15,56,659/- standing under the head Sundry Creditors to balance sheet as on 31-03-03. The assessee has shown ₹ 5,13,90,589/- as sundry creditor to the accounts of M/s. Eastern Sugar Industries Ltd. The AO observed that on examination of balance sheet belonging to M/s. Eastern Sugar Industries Ltd has shown sundry debts at ₹ 184.79 lakhs for which the assessee submitted that as per their list, the credit the account of M/s. Eastern Sugar Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's failure to make a full and true disclosure of all material facts necessary for assessment. Hence the issue regarding admissibility of depreciation duly considered in the original assessment and reopening of assessment on the very same issue suffered from change of opinion in the absence of any fresh material. Hence the Notice u/s.148 of the I T Act issued by the Ld. A.O. on the basis of the same facts and material which are already on records at the time of original assessment, amounts to change of opinion, which is not permissible under the Law. Further merely because Assessing Officer feels that he has failed to do what he ought to have done in original assessment proceedings, it can be a valid ground for seeking initiation of reassessment proceedings under section 147/148. 3.3. Moreover the Hon 'ble Supreme court in the case of Kelvinator of India {2010} 320 ITR 561(SC) has held that reassessment even within the four-year limit , cannot be done without fresh information . Reopening on mere change of opinion on matters, which are already on record ,where original assessment has been made under section 143(3) is not permissible. 3.4. In view of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation (1). However, he relied on the order of the AO in making assessment u/s. 147 by issuing notice u/s. 148 of the Act. Therefore, the action of the ld.CIT(A) in annulling the same was not correct and not justified in accordance with the provisions of the I.T Act. 13. Heard the rival submissions and perused the material available on record. The question before us is as to whether the re-assessment made u/s.147 of the Act is justified in the circumstances of the case. We find that the assessee is having a sugar mill factory and for which it purchased new machinery. It has also leased out its plant machinery to M/s. Eastern Sugar Industries Ltd. During the re-assessment proceedings the AO did not find any new material, which could suggest to make any addition u/s. 147 of the Act. The AO did not bring any new material for reopening the assessment u/s. 147 of the Act. The case law as relied on by the assessee on the issue of re-assessment u/s. 147 of the Act in the case of Tupperware India P.Ltd (supra) is squarely applicable. The relevant finding of which is reproduced herein below for better understanding:- 12. At the outset it requires to be factually noticed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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