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TMI Blog2016 (6) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... ated within four years. It is by now well settled for issuing notice for reopening, the Assessing Officer herself ought to have recorded the satisfaction that income chargeable to tax had escaped assessment. Even the revenue's audit party cannot prevail over such opinion of the Assessing Officer. The audit party can bring to the notice of the Assessing Officer an element which might have escaped her notice, nevertheless, once she was convinced that the objection of the revenue party was not valid, her act of issuing notice for reopening was simply not permissible. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 822 of 2016 - - - Dated:- 14-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and container freight station operations, software services and related business filed its return of inocme declaring loss at ₹ 11,78,38,140/-. The case was selected for scrutinyand the assessment was finalised u/s.143(3) rws 144C of the Act on 28.02.2014 determining the income at Rs. (-) 11,43,38,140/-. In the assessment order the assessee was allowed depreciation of ₹ 18,01,30,162/-on Infrastructure Usage Facility @ 25% on WDV of ₹ 72,05,22,447/- as on 31.03.2010 treating the same as intangible asset. On perusal of assessment records it is noticed that the assessee has been using infrastructure developed by Mundra Port and Special Economic Zone (MPSEZ). As per the depreciation charge submitted by the assessee, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the depreciation allowed on the infrastructure Usage Facility was not in order. The irregular allowance of depreciation in A.Y. 2010-11 of ₹ 18,01,30,162/- has led to escapement of income on account of failure on the part of assessee to disclose fully and truly all material facts pertaining to A.Y. 2010-11. In view of the above, I am of the opinion that this is a fit case for reassessment by invoking the provisions of section 147 of the Income Tax Act, 1961. 3. The petitioner raised objections to the notice for reopening which were dismissed by the Assessing Officer, hence this petition. 4. Learned counsel Shri Soparkar for the petitioner raised the following contentions : 1) That the Assessing Officer was compelled to iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Comments of the AO 4. The similar issue was raised in A.Y. 2007-08 2008-09. This office has submitted detailed replies and stated that the objection is not acceptable. However, the Revenue Audit has not considered the reply. Therefore, in order to settle the audit objection, action u/s. 147 has been initiated and accordingly in AY 200708 notice u/s.148 has been issued on 23.01.2014. The assessee has challenged the impugned notice issued u/s 148 dated 23.01.2014 for reopening the assessment before the honourable High Court of Gujarat. The Honourable High Court of Gujarat vide order dated 11/12/2014 has quashed the notice u/s. 148 for A.Y. 2007-08 and review petition has been filed. The objection raised by the Revenue Audit Party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scaped assessment. Even the revenue's audit party cannot prevail over such opinion of the Assessing Officer. The audit party can bring to the notice of the Assessing Officer an element which might have escaped her notice, nevertheless, once she was convinced that the objection of the revenue party was not valid, her act of issuing notice for reopening was simply not permissible. We may refer to the decision of the Supreme Court in case of Indian and Eastern Newspaper Society v. Commissioner of Income-tax, New Delhi reported in 119 ITR 996. 8. In the result, petition is allowed. Impugned notice dated 31.3.2015 is quashed. Petition is disposed of. 3. Facts being identical in the present case also impugned notice dated 27.11.2014 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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