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TMI Blog2018 (7) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... early on account of change of opinion by the Assessing Officer – something which is impermissible under the scheme of the Act and in the light of binding judicial precedent. Respectfully following the esteemed views in the case of Gujarat Power Corpn. Ltd. (2012 (9) TMI 69 - GUJARAT HIGH COURT), we uphold the grievances of the assessee - ITA No. 1766/Ahd/2014 - - - Dated:- 11-7-2018 - Pramod Kumar AM And Mahavir Prasad JM] For The Appellant : SN Soparkar Parin Shah For The Respondent : Keyur Patel ORDER Per Pramod Kumar, AM: 1. By way of this appeal, the assessee-appellant has challenged correctness of the order dated 25th March, 2014 passed by the by the CIT(A)-6, Ahmedabad, in the matter of assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of small parts used for replacement repairs of machinery was consistently claimed as manufacturing expenses. Ld. CIT(A) ought to have allowed deduction of loss claimed on sale of parts becoming obsolete unusable by deleting disallowance made by AO. It be so held now. 4. Levy of interest u/s 234B, 234C 234D of the Act is not justified. 5. Initiation of penalty u/s 271(1)(c) of the Act is not justified. 3. To adjudicate on this appeal, a few material facts need to be taken note of. It is a case of reopened assessment. The reasons recorded for the reopening the assessment are as follows:- The assessee company engaged in mfg. Pharmaceuticals, fertilizers, chemicals and paints etc, filed its return of income for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons as set out above, the assessee has raised its objections to the same. It was, inter alia, submitted that it is merely a case of change of opinion on the basis of which the assessment is being sought to be reopened. The Assessing Officer, however, rejected this objection and observed that it can be easily inferred, that the issue of allowability of loss on sale of stores, was not at all adjudicated by AO, with reference to its nature being revenue or capital. The Assessing Officer was of the view that since the issue, whether the loss on sale of stores, was revenue or capital in nature, has never been consciously considered by the Assessing Officer, he did not form any opinion on the issue while framing the original asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt raises queries, asking the assessee to satisfy him with respect to such a claim and thereafter, does not make any addition in the final order of assessment, he can be stated to have formed an opinion whether or not in the final order he gives his reasons for not making the addition. The ratio of aforesaid judgement has been beautifully summarized in the ITR s head-note as follows:- Held, allowing the petition, that in the reasons which the Assessing Officer had recorded for reopening the assessment, he had based his case on wrong exemption of interest from bonds claimed under section 10(23C). In the original assessment, the Assessing Officer had examined such claims in detail and any reopening of the assessment of the same c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, formed part of the original assessment record, that per se would not bar the Assessing Officer from reopening the assessment on the basis of such material. The expression tangible material does not mean material alien to the original record. The words escaped assessment where the return is filed, are apt to cover the case of a discovery of a mistake in the assessment caused by either an erroneous construction of the transaction or due to its non-consideration, or, caused by a mistake of law applicable to such transfer or transaction even where there has been a complete disclosure of all relevant facts upon which a correct assessment could have been based. 6. Having noticed the fact that the Assessing Officer had raised specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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