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TMI Blog2023 (3) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ITED case [ 2022 (4) TMI 636 - BOMBAY HIGH COURT] we hold that the assessing officer has reopened the assessment of the year under consideration on mere change of opinion only and the same is not permitted under the law. Accordingly, we hold that the reopening of assessment is bad in law and accordingly the impugned assessment order is liable to be quashed. Accordingly, we quash the orders passed by the tax authorities - Appeal of the assessee is allowed. - I.T.A. No. 2573/Mum/2022 - - - Dated:- 22-2-2023 - Shri Baskaran BR, AM And Rahul Chaudhary, JM For the Appellant : Mr. Pratik Shah For the Respondent : Shri.Dilip K. Shah, SR.DR. ORDER PER BASKARAN BR, ACCOUNTANT MEMBER: The assessee has filed this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s should have been allowed @ 25% instead of 60% in the original assessment order and it has resulted in excess of allowance of depreciation resulting in escapement of income.The Ld. AR submitted that the Assessing Officer completed the reassessment by disallowing excess depreciation of Rs. 91.71 lacs. 5. The Ld. AR submitted that the Assessing Officer has examined the issue of allowing depreciation on software at the time of original assessment proceedings and he has taken the conscious decision to allow depreciation @ 60%. The re-assessment proceeding has been initiated only to restrict the rate of depreciation to 25%, which is mere change of opinion. Accordingly, the Ld AR contended that the Assessing Officer was not justified in re-op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 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 is proposed after expiry of four years from the end of the relevant assessment year and the assessment has been completed under section 143(3) of the Act. Therefore, proviso to section 147 of the Act would apply which bars re-opening after four years unless Revenue show that there has been failure on the part of assessee to disclose truly and fully material fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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. v. ITO [1961] 41 ITR 191 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. To meet the possible contentions that when some account books or other evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issue a writ of certiorari or a writ in the nature of certiorari or any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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