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TMI Blog2016 (7) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... that AO found the claim of 40% depreciation on the above said vehicles appropriate and allowed the same. Since there is specific discussion on the depreciation claims in the first assessment order, allowance of 40% depreciation by the AO certainly indicates that he has consciously allowed the depreciation at that rate after due examination. Therefore, any opinion by the subsequent AO to restrict the same to 25% is a change of opinion, which is not permitted under the provisions of law. Moreover the wheel loaders and Graders are Motor vehicles and is certainly eligible for depreciation at 40% as per schedule and the case law on the subject. No reason to interfere with the well reasoned order of the CIT(A), both on the issue of reopening a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -assessment completed assessee s objection regarding re-opening and also rate of depreciation were negatived by the AO. 3. On appeal before the Ld. CIT(A), Ld. CIT(A) accepted the contentions with reference to the reopening of assessment. It was submitted that reopening on the same set of facts after completion of assessment u/s. 143(3) amounts to change of opinion and hence bad in law. Assessee relied on the following judgments: i. Praveen P. Bharcuhua (Mrs.) Vs. DCIT [256 CTR 3446 (Bom); ii. Amrit Feeds Ltd., Vs. ACIT Ors [51 DTR 315] (Cal.); iii. Decision of the jurisdictional ITAT in GVK Biosciences P. Ltd., Vs. Addl. CIT [29 ITR (Trib) 684] (Hyd); iv. Kelvinator of India Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that these items are nothing but motor-vehicle as per Entry III-(3)(ii) of Appendix-I of Income Tax Rules. Reliance was placed on the judgment of Hon'ble Apex Court in the case of Bose Abraham Vs. State of Kerala [AIR 2001 SC 835]. Further, assessee also relied on the Hon'ble Gujarat High Court judgment in the case of Gujco Carriers Vs. CIT [256 ITR 50] (Guj.) wherein, motor lorries were explained to include fire trucks, forklift trucks and crane trucks which are designed for special services. Assessee also relied on various decisions of the ITAT to justify that claim of 40% allowed by the AO in the original assessment is correct and restriction by the AO to 25% is not according to the provisions of law. Ld. CIT(A) allowed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the first assessment order, allowance of 40% depreciation by the AO certainly indicates that he has consciously allowed the depreciation at that rate after due examination. Therefore, any opinion by the subsequent AO to restrict the same to 25% is a change of opinion, which is not permitted under the provisions of law. Moreover the wheel loaders and Graders are Motor vehicles and is certainly eligible for depreciation at 40% as per schedule and the case law on the subject. In view of this, I do not see any reason to interfere with the well reasoned order of the CIT(A), both on the issue of reopening and as well as allowance of depreciation at 40% on wheel loaders. For these reasons, I uphold the order of CIT(A) and reject the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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