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TMI Blog2016 (6) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By filing these petitions, the petitioner has challenged the impugned notices at Annexure-A to both the petitions, which are issued for assessment years 2001-02 and 2002-03 respectively. 2. The petitioner is a limited company and return of income filed for the aforesaid two years by the company was selected for scrutiny assessment and show cause notices were issued calling for explanations/details on several issues. The petitioner submitted such details and authorized representative of the petitioner attended the assessment proceedings, thereafter, assessment order was framed. Against such orders, the petitioner preferred appeals before CIT (A), which were partly allowed. Thereafter, the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain the basis of arriving at the valuation of technical knowhow. The assessee furnished copy of ledger account, copies of invoices raised and the copy of final account of Tarak Chemicals Ltd. A notice u/s 133 (6) was issued to Tarak Chemicals Ltd. for furnishing the agreement along with details of valuation of knowhow in respect of fee received from the assessee. No response was received from the Tarak Chemicals P. Ltd. The Assessing Officer observed that no agreement has been executed between the assessee and Tarak Chemicals P. Ltd. and concluded that this is a colourable device to reduce the profit of the assessee company. Accordingly claim of depreciation @ 25% on the technical knowhow was withdrawn. 6.2 It is contended by the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... devise to reduce its income. The purchase during the year may be ₹ 28.87 lacs but the appellant claimed depreciation to the extent of ₹ 46,91,710/- and therefore the Assessing Officer is justified in disallowing the claim of depreciation on nonexistent assets. While confirming the disallowance made by the Assessing Officer, he is directed to disallow the claim of depreciation in all other years since the entire claim of depreciation on non-existing assets is disallowable. For this purpose he may take necessary remedial measures under the relevant provision of the I.T.Act. 4. While issuing notice on 12.10.2009, it was stated as under:- Whereas I have reasons to believe that your income chargeable to tax for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 149 of the Act, there is no time limit u/s 150(1) that starts with non obstante clause and to that extent the observations of the Hon'ble High court are in error. Further Section 150(2) provides necessary restriction on Section 150(1) and even under the said restriction provided by Section 150(2), the issue of notices u/s 148 of the AY 1996-97 and 1997-98 in instant case is within the restricted time limit provided u/s 150(2) of the IT Act. Section 150 of the Act reads as under: 150 - Provision for cases where assessment is in pursuance of an order on appeal, etc. (1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an assessment or reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine the records of the proceedings. If there is no proceeding before it or if the Assessment year in question is also not a matter which would fall for consideration before the higher authority, Section 150 of the Act will have no application. 6. Mr.Soparkar submitted that in view of above observations, both these petitions may be allowed by quashing and setting aside the impugned notices. 7. On the other hand, counsel for the respondent Mr.Parikh has also taken us through the notice dated 19.7.2010, reply to the notice and decision of the authority rejecting the contention of the assessee. He submitted that while passing the order dated 15.9.2010, it is observed in para 4 as under:- 4. The submission of the assessee which runs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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