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TMI Blog2022 (4) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... its audited financial statements and tax audit report. Petitioner's file was picked up for scrutiny and finally the assessment order dated 23rd March, 2015 was passed under Section 143(3) of the Income Tax Act, 1961 (the Act) determining petitioner's income at Rs. 86,45,26,680/- under normal provisions of the Act. 2. Petitioner thereafter received a notice under Section 148 of the Act stating that there are reasons to believe that petitioner's income chargeable to tax for A.Y. 2013-14 has escaped assessment within the meaning of Section 147 of the Act. At petitioner's request reasons for reopening was provided vide communication dated 12th August, 2021. 3. Before we go into the reasons, we have to note that this is a case where re-opening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computer software worth Rs. 9,85,73,355 was added and classified under the category intangible asset. The software so capitalised, assessee had to incur recurring expenditure on account of Annual Licence fee of Rs. 1,58,94,936, Annual Maintenance charge of Rs. 1,52,95,452 and variable transaction fees of Rs. 2,57,32,631. To use the software, the above said expenses are to be incurred periodically and therefore debited to profit and loss account. 3. From the above narration of the issue, it can be noted that the assessee got only the right to use the software by payment of licence fee on periodical basis. Therefore the asset is nothing but intangible asset which was also classified by the assessee. However, assessee had claimed depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner even provided, vide letter dated 1st July, 2014, details of addition to fix assets with copies of invoices for the purchase of fixed assets. The details include the software which is the subject matter of the re-opening. 8. Mr. Suresh Kumar submitted that simply disclosing it in the notes to Balance Sheet is not enough and in the assessment order passed under Section 143(3) of the Act there is no discussion regarding computer software. As held by the Apex Court in Calcutta Discount Co. Ltd. vs. Income Tax Officer, Companies District I, Calcutta and Another [1961] 41 ITR 191 (SC) that there is no doubt that the duty of disclosing all primary facts relevant to the decision of the question before the Assessing Officer lies on the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as having been subject of consideration during the assessment proceedings. In any case from the reasons recorded itself we are satisfied that there has been no failure on the part of assessee to disclose material facts. In paragraph no. 4 of the reasons recorded the Assessing Officer admits that it is his change of opinion based on the same primary facts which have been considered by the Assessing Officer to complete original assessment and we say this because in paragraph no.4 of the reasons it is stated "Assessee has claimed and department allowed depreciation @ 60 percent..........". 10. In the circumstances, we allow the petition in terms of prayer clause - (a) which reads as under : (a) that this Hon'ble Court may be pleased to is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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