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TMI Blog2014 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... ary direct binding judicial precedent, is patently illegal. Thus we strike down the very reassessment proceedings which are based on the charge of opinion of the A.O. On merits also the case of the assessee is strong but since we have already allowed the legal ground raised in the CO, we need not to decide the appeal of the revenue on its merit and in the circumstances all the grounds raised become infructuous. Resultantly, the appeal of the Revenue is liable to be dismissed having become infructuous. - Decided in favour of assessee - I.T.A. No. 469/Jodh/2013 & Cross Objection No. 38/Jodh/2013 - - - Dated:- 4-3-2014 - SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER) Assessees by : Shri K. Sampath. Department by : Dr. Deepak Sehgal-CIT- D.R. O R D E R PER: HARI OM MARATHA, J.M. The appeal by the revenue and cross objection (CO) by the assessee are directed against the order of ld. CIT(A), Udaipur, dated 31.07.2013. 2. In the CO the assessee has raised a legal issue challenging the validity of the assumption of jurisdiction u/s 147 r.w.s. 148 of the I.T. Act, 1961 ( the Act for short). Since this issue goes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eciation has rightly been disallowed in the assessee's case. 2. deleting the disallowance of ₹ 30,09,36,209/- being the amount of additional depreciation on new plant and machinery in the Captive Power Plant at Chanderia Lead Zinc Smelter by ignoring that these assets do not fall in clause (ii) of section 32(1) of the I.T. Act and hence these assets are not eligible for claim of additional depreciation. 4. The assessee has raised the following ground in its Cross Objections: On the facts and in the circumstances of the case, the authorities below erred in confirming the proceedings u/s 147/148 of the I.T. Act, 1961. The same having been done erroneously, arbitrarily and illegally deserves to be quashed. 5. As discussed above, we have heard the parties at length even on the legal issue raised by the assessee in its CO. It was argued that the assessee-company has disclosed true and complete material facts before the AO and no new fact has come to his possession thereafter. It was stated that based on the same facts which were disclosed in the return and this fact is evident from the assessment order itself, the AO has initiated reassessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Act and reading between the lines is beyond his powers. He cannot read a provision in any manner he likes. The ld. A.R. submitted that the assessee company filed its return of income on 26.10.2005 showing total income of ₹ 5,87,04,55,500/- for AY 2005-06. The original assessment was completed u/s 143(3) after in-depth scrutiny and investigation made by the A.O. on 26.12.2007 and has arrived at a total income of ₹ 609,09,40,080/-. The claim relating to grant of additional depreciation on CPPs was specifically examined by the Assessing Officer during the course of original assessment proceedings. The assessee company preferred an appeal against the said assessment order before the Ld. CIT(A). The Ld. CIT(A) has decided the said appeal vide order dt. 31.03.2008. The aforesaid appeal inter-alia included the grounds relating to the following points connected with CPPs: a. The claim of deduction u/s 80IA in respect of reducing the profits of the eligible business and of income of CPPs was allowed vide para 8 to 8.3 and para 9 to 9.3 respectively of the order passed by the CIT(A). b. Thus, various aspects relating to CPPs were subject matter of considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j.); d. Rajesh Jhaveri Stock Brokers (P) Ltd. V/s ACIT (2006) 284 ITR 593 (Guj.); and e. Adani Exports V/s DCIT. (1999) 240 ITR (Guj.), The ld. A.R. further submitted that the assessments completed after scrutiny u/s 143(3) cannot be reopened u/s 147 merely on the basis of change or opinion, nor review or reappraisal of material already existing on records is permissible for invoking the provisions of section 147/148. It is evident from records that the assessee company had made a true and full disclosure of all relevant facts relating to claim of additional depreciation and also in respect of claim for grant of deduction u/s 80IA. A separate audit report in the prescribed form 10CCB in support of claim for deduction u/s 80IA/80IB, was duly submitted in relation to the claim for exemption u/s 80IA in respect of income from CPPs etc. The assessee had also submitted replies pursuant to all the queries raised by the Ld. AO during the course of original assessment proceedings. Thus, there was no failure or omission on the part of the assessee. It is apparent from perusal of original assessment records that the question relating to grant of additional depreciation ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f opinion of the AO, by reappraisal of evidence already existing on records or on the basis of mere change of opinion of the related provisions of the law and its interpretation is patently invalid, wholly without jurisdiction and is grossly erroneous. It will be imperative to repeat that all such claim and deductions were accepted after a careful consideration of the entire relevant material, the relevant provisions of law and the relevant judgments relating to all those points. Hence reopening the said completed assessment without any fresh material or without any contrary direct binding judicial precedent, is patently illegal. 8. In the light of the above observation, we strike down the very reassessment proceedings which are based on the charge of opinion of the A.O. On merits also the case of the assessee is strong but since we have already allowed the legal ground raised in the CO, we need not to decide the appeal of the revenue on its merit and in the circumstances all the grounds raised become infructuous. Resultantly, the appeal of the Revenue is liable to be dismissed having become infructuous. 9. In the result the CO of the assessee is allowed and the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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