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TMI Blog2019 (3) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in the assessment made u/s 143(3). Subsequently, revenue cannot have reason to believe, on those facts, that petitioner is engaged in generation or generation and distribution of power and has claimed additional depreciation on plant and machinery for use of it in a period prior to said insertion by amendment. Once there is finding that reasons to believe are not good reasons, jurisdiction is not derived to compel assessee to submit to reassessment. Submissions made on behalf of revenue regarding non-disclosure also cannot be accepted in the facts and circumstances, Court having noticed there is no such statement to that effect in the reasons to believe. - Decided in favour of assessee. - WP no. 1059 of 2016 And GA no. 216 of 2018 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h same view on change of opinion taken by Bombay High Court was affirmed. iii) Division Bench judgment of Bombay High Court in Titanor Components Limited Vs. ACIT reported in (2012) 343 ITR 183 (Bom.), wherein it was said, it is necessary for AO to first observe whether there is failure to disclose fully and truly all material facts necessary for assessment and having observed that there is such failure, to proceed under section 147. It must follow that where AO does not record such failure he would not be entitled to proceed under section 147. He demonstrated from impugned notice, enclosing the reasons to believe, there was omission in this regard. In assessee s objection dated 14th September, 2016 this was specifically pointed out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also revealed from the Appendix III, clause 14 of Tax Audit Report that the assessee claimed additional depreciation of ₹ 19,25,77,970/- for plant and machinery used in Co-generation power plant at Baroda, Durgapur and Mundra which included ₹ 11,55,57,195/- in respect of plant and machinery used for a period less than 180 days in the preceding previous year. Section 32 of Income Tax Act, 1961 provides for additional depreciation on new plant and machinery (other than ships and aircrafts ), which has been acquired and installed by a company engaged in the business of manufacture or production of any article or thing on or after 31st day of March, 2005. However, the benefit of additional depreciation, conferred u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 64 (SC), which is reproduced below:- In our view, the reopening of assessment is fully justified on the facts and circumstances of the case. However, on the merits of the case, it would be open to the assessee to raise all contentions with regard to the amount of _98.46 lakhs being offered for tax as well as its contention on section 14A of the Incometax Act, 1961. Subject to the above, the special leave petition is dismissed. Mr. Bhowmik submits, there should be no interference on requirement of reassessment. He relies on two judgments of Supreme Court. Firstly, in Raj Kumar Shivhare Vs. Directorate of Enforcement reported in (2010) 4 SCC 722 , to paragraph 31, which is reproduced below:- When a statutory fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, on reassessment made, will have remedy of statutory appeal as provided in clause (b) in sub-section (1) of section 246A. He submits, there should not be interference. In reply Mr. Khaitan submits, Supreme Court in Jeans Knit Private Ltd. Vs. DCIT reported in (2017) 390 ITR 10 (SC) had reiterated view taken by it in Calcutta Discount Company Limited Vs ITO reported in (1961) 41 ITR 191 (SC) . He submits, though in Calcutta Discount (supra) there were dissenting views but, that both conditions being (i) ITO having reason to believe there has been under assessment and (ii) he having reason to believe that such under assessment has resulted from non-disclosure of material facts, must co-exist before ITO has jurisdiction to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation. By subsequent communication dated 4th March, 2013 further details were provided by assessee. In assessment order dated 21st March, 2013 of the assessment made under section 143(3), AO had said, inter alia, as follows:- The assessee company is engaged in the business of manufacture and sale of Carbon Black and sale of surplus power generated from off gases from Carbon Black manufacturing process . Facts recorded in last preceding paragraph make contention of assessee regarding reasons to believe based on availing a benefit subsequently made available by amendment, acceptable as against revenue. AO had found as a fact, that which has been extracted above in the assessment made under section 143(3). Subsequently, rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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