9911796707
TMI Blog2018 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Revenue Audit objection, a notice was sent for reopening of assessment and on enquiry, it was found that the depreciation claimed was not proper as the Windmills were not commissioned in the relevant previous year. The petitioner filed their objections for the said query and the details of Windmills and Commissioning Certificate issued by Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO) was submitted as required by the Assessing Officer at the time of scrutiny assessment. (ii)According to the petitioner, the reopening of assessment is only based on change of opinion and not on any material documents. Further, the petitioner had furnished all the details truly, without any concealment at the time of scrutiny assessment. Therefore, the reopening of assessment is unlawful and against the established legal principles. On 22.08.2017, the respondent had passed an order in reply to the objection for reopening of the assessment, without considering the established legal principles and ignoring the principles of natural justice. Aggrieved over the order dated 22.08.2017, the petitioner has filed the above Writ Petition. 3.The brief case of the respondent is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een passed only after considering the present facts, circumstances and also the veracity of the erection and commissioning of the 8 Wind Turbine Generators, which fact is clear from the Bill dated 12.04.2012, which otherwise should have been dated 31.03.2012. (v)No opinion regarding date of commissioning of Windmills and the petitioner's eligibility for depreciation was formed during the original scrutiny assessment. Till date, the petitioner has not filed the details of Units generated date-wise to prove that the Windmills were commissioned on 30.03.2012. The invoice of completion of erection and installation of Windmill raised on the petitioner by its supplier is dated 12.04.2012 and is beyond comprehension as to how the petitioner would have commissioned the Windmills on 30.03.2012. Therefore, there is a prima facie case made out for reopening of the assessment under Section 148 and it is for the petitioner to prove the factual details before the Assessing Officer. (vi)The order dated 13.03.2015 had been passed by considering the issues covered by Section 35AD and Section 14A and no opinion was formed regarding the petitioner's eligibility to claim depreciation of Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in (2017) 99 CCH 0019 DelHC [Director of Income Tax (International Taxation) & Ors. Vs. Rolls Royce Industrial Power India Ltd., & Ors.] wherein a Division Bench of the Delhi High Court held as follows: "... 19.The fact of the matter is that during the course of the original assessments under Section 143(3), the AO did serve upon the Assessee a details questionnarie. The AO examined the nature of the transactions involving the Assessee and the payments received therefor. The reopening was not based on any fresh material. By revisiting the same materials the successor AO now concluded that the payments received by the Assessee pursuant to the O&M Agreements should be treated as FTS. In the circumstances, the view taken by a successor AO on the same material was indeed nothing but a mere change of opinion. It is a well-settled legal proposition, as explained in Calcutta Discount Co. Ltd Vs. ITO [1961] 41 ITR 191 (SC) that once an Assessee has discharged the burden of not only producing the account books and other documents, but also the specific material relevant to the assessment, it is for the Income-Tax Officer to draw the proper inferences of fact and law therefrom and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons had been disclosed in the proceedings, the Assessing Officer had to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment. 7.On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that the petitioner Assessee Company filed its e-Return of Income on 27.09.2012 for the assessment year 2012-13, admitting a NIL income and claiming current year loss of Rs. 35,05,24,397/-. After completing the formalities, scrutiny assessment under Section 143(3) was passed on 13.03.2015 making disallowance under Section 35AD of Rs. 13,96,553/- and disallowance under Section 14A of Rs. 38,10,686/-, thereby, determining the current year loss at Rs. 34,53,17,158/-. By order dated 22.08.2017, the respondent rejected the petitioner's objections for the reasons for reopening the assessment for the year 2012-13. The respondent had sought to reopen the assessment by issuing the notice dated 12.04.2012 containing reasons for reopening is that the assets viz ..... X X X X Extracts X X X X X X X X Extracts X X X X
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