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TMI Blog2021 (4) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is that he failed to mention the date in the Form 3CD at the time of submitting the report. We are of the view that at the relevant time, the then Assessing Officer had examined the issue at length and did not disallow the depreciation claim. Therefore, in our view, now on the same set of facts and material, which were earlier examined by the Assessing Officer, the initiation of the reassessment proceedings under Section 147 by issuing notice is nothing but a change of opinion in the hands of the Assessing Officer. Applicability of principle of change of opinion not applicable in the present case as in the previous assessment proceedings the issue of depreciation was not dealt with by the Assessing Officer while passing the order - We do not agree with the contention raised by the learned counsel for the revenue. In our opinion the issue of depreciation examined by the erstwhile Assessing Officer is enough to invoke the principle of change of opinion. In this context, we may refer and rely of the judgment of this Court in case of Gujarat Power Corporation Ltd Vs. ACIT [ 2012 (9) TMI 69 - GUJARAT HIGH COURT] wherein, it was held that merely because of the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reads as under : 1. The assessee Baroque Pharmaceuticals Private Limited engaged in pharmaceutical business, filed his return of income on 29.09.2012 declaring total loss of ₹ 34,77,129/-. Assessment under Section 143(3) was completed on 18.3.2015 by determining total loss of ₹ 25,47,129/- and allowed carried forward unabsorbed loss of A.Y. 2008-09 to 2012-13. 2. On examination of case records, it is observed that the assessee has claimed depreciation on addition of new fixed assets before 30.09.2011 as follows: * Plant and machinery of ₹ 2,36,67,132/- (claimed depreciation @ 15% + additional depreciation @ 20% of ₹ 82,83,496/-, * Factory building 2,37,47,290/- claimed depreciation @ 10% 23,74,729/- * Laboratory equipment ₹ 63,96,975/- claimed depreciation @ 15% of ₹ 9,59,846/- * Electric installation ₹ 36,98,715/- (claimed depreciation @ 10% of ₹ 3,69,871/-, It is further noticed that the auditor has not mentioned the date on which these new project assets were put to use as required in column no. 18(d) of 3CD report. 3. As per section 32 of the Act, depreciation is allowed if the assets is acquired and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suomoto the depreciation claimed which were not put to use during the year under consideration and never furnished any information in this regard. Hence there is failure on assessee s part as the assessee intentionally claimed deprecation on assets which were not eligible for deprecation. It is true that the assessee has filed a copy of annual report and audited P L A/c and balance sheet along with return of income where various information/material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. It is important to highlight here that material facts relevant for the assessment on the issue under consideration were not fled during the course of assessment proceedings and the same may be embedded in annual report, audited P L Account, balance sheet and books of account in such a manner that it would require due diligence by the AO to extract these information. For aforestated reasons, it is not a case of change of opinion by the AO. 6. Further, in this case more than four years have lapsed from the end of the assessment year under consideration. Hence necessary sanction to issue no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the assets were put to use and further clarified with regard to transfer of assets from new project with supporting evidences. In this circumstances, when there was a complete disclosure with regard to depreciation claimed, the reopening beyond 4 years is illegal, bad in law. 6. Mr. Chintan Dave, the learned counsel appearing for the applicant has submitted that the issuance of notice is nothing but a change of opinion as all the details were available during the course of original assessment proceedings and after verification by the Assessing Officer the claim of depreciation was allowed. Therefore, on the same set of facts without any tangible material, the reopening cannot be permitted. 7. In view of the aforesaid contention, the learned counsel for the writ application submitted that, the impugned notice as well as the order of disposing off the objections are bad, illegal and without jurisdiction and therefore, the same deserve to be quashed and set aside and accordingly, the writ application may be allowed. 8. On the other hand, Mrs. Mauna Bhatt, learned Standing Counsel appearing for the revenue has vehemently opposed the writ application, contending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed by the assessee and after thorough verification of the same, the then Assessing Officer vide order dated 25.03.2015 framed the assessment under Section 143(3) of the Act and thought it not fit to disallow the claim of depreciation and additional depreciation amount ₹ 1,19,87,942/- for the year under consideration. 13. We have carefully examined the reasons recorded for the reopening of the assessment. The assessment is sought to be reopened mainly on the ground that assessee is not eligible to claim the depreciation and additional depreciation under Section 32 of the Act as auditor of the assessee had not mentioned the date of put to use assets, which had been acquired during the year under consideration. The Assessing Officer has noticed that the auditor has not mentioned the date in the Form 3CD and raised the inference that the assets were not used in the year under consideration. 14. In the background of the aforesaid facts, in the case on hand, we have examined all the material facts and upon plain reading of the reasons recorded, we are of the view that the impugned notice is bad in law and contrary to the Section 147 of the Act and reopening is not permissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not formed an opinion on the issue. So far as the formation of opinion is concerned, all that is necessary, the matter should have been examined by the Assessing Officer. We quote para 5 and 6 of the judgment, which read thus : 5. xxxx in a situation where the Assessing Officer during scrutiny assessment, notices a claim of exemption, deduction or such like made by the assessee, having some prima facie 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. 6. Having noticed the fact that the Assessing Officer had raised specific questions vide requisite notice dated 15.10.2010 with respect to allowability on loss on sale of stores and that the assesses had explained the same without any followup question by the Assessing Officer in this regard, in our considered view, the Assessing Officer had indeed formed an opinion about the deductability of loss on sale of stores. It is also not in dispute that no new material has come to the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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