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TMI Blog2023 (2) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that there is a failure on the part of the assessee. Thus, in our considered opinion, the notice issued under section 148 of the Act is invalid. We hold that the notice issued under section 148 of the Act in this case is invalid and thus, the ld. CIT(A) has rightly quashed the reassessment proceedings. Accordingly, the ground raised by the Revenue is dismissed. - I.T.A. Nos. 2011 & 2012/Chny/2019 - - - Dated:- 31-1-2023 - Shri V. Durga Rao , Judicial Member And Shri G. Manjunatha , Accountant Member For the Appellant : Shri P. Sajit Kumar , JCIT For the Respondent : Shri T. Banusekar , C. A. ORDER PER V. DURGA RAO , JUDICIAL MEMBER : Both the appeals filed by the Revenue are directed against the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished by the assessee, the Assessing Officer has completed the assessment under section 143(3) of the Act dated 16.12.2011. Subsequently, the Assessing Officer issued a notice under section 148 of the Act on the ground that the assessee has claimed depreciation at 30% and the same was allowed by the Assessing Officer, whereas, the assessee is only eligible for 15% and thereby, there is an escapement of income. By calling the explanation of the assessee, the Assessing Officer has completed the assessment under section 143(3) r.w.s. 147 of the Act dated 02.11.2016 by disallowing excess depreciation claimed by the assessee for the assessment year 2009-10. 4. On appeal before the ld. CIT(A) for the assessment year under consideration, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for transportation of goods on hire. 3.2 The Ld. CIT(A) erred in holding that the assessee is in the business of transportation of goods on hire and allowing the higher rate of depreciation onsite equipment in view of the CBDT Circular No.652 dt. 14.06.1993 without appreciating the fact that in the Article of Association of the Company it is specified that the company is engaged in the business of handling, loading, unloading and transportation of all type of cargo including coal and it does not specify that the company is engaged in the business of running vehicles on hire and also failed to appreciate the decision of the Hon'ble High Court Kerala in the case of N.D. Joseph vs. CIT in ITA No.672 of 2009 dt. 11.01.2010. 4. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r asked the assessee to produce fixed assets schedule as per the provisions of Income Tax Act (paper book page No. 6) and also annual reports such as Directors report, tax audit report in form 3CB/3CD along with annexures, balance sheet along with breakup of schedules, profit and loss account along with breakup of schedules, etc. He also pointed out from paper book page 8, in response to notice under section 143(2) of the Act dated 09.11.2011, Proof of addition to fixed assets at S. No.5 and Fixed Assets Schedule as per the provisions of Income Tax Act S. No.18 have been filed by the assessee before the Assessing Officer. He also pointed out from paper book page 10, a letter dated 15.11.2011, S. No. 4 page No. 11, which shows that the C.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer, the case of the Department is that the assessee is eligible to claim depreciation @ 15% and whereas, the assessee has claimed 30% depreciation, thus, there is an escapement of income. 8.1 During the course of scrutiny assessment proceedings, the Assessing Officer has issued notice under section 143(2) of the Act dated 20.08.2010 calling all the details from the assessee in respect of return filed, particularly, the Assessing Officer has asked fixed asset schedule as per the provisions of Income Tax Act. On 09.11.2011, the assessee has filed fixed asset schedule as per the provisions of Income Tax Act vide page 9 of the paper book S. No. 18. The assessee has also filed fixed asset details by letter dated 15.11.2011 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the notice issued under section 148 of the Act in this case is invalid and thus, the ld. CIT(A) has rightly quashed the reassessment proceedings. Accordingly, the ground raised by the Revenue is dismissed. 10. The grounds and facts of the case for the assessment year 2010-11 are similar to that of the assessment year 2009-10. Thus, the ground raised by the Revenue for the assessment year 2010-11 also stands dismissed. 11. So far as merits of the case is concerned, as the reopening of assessment has been held as invalid, there is no need for further adjudication on merits or it would be of mere academic. 12. In the result , both the appeals filed by the Revenue are dismissed . Order pronounced on 31st January , 2023 at C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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