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TMI Blog2025 (2) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... with the consent of the learned advocates appearing for the respective parties, the same are taken for hearing. 4. By these petitions, the petitioner has challenged the notices dtd.21.03.2021 and 26.03.2021 issued under Section 148 of the Income Tax Act, 1961 (For short 'The Act') for the Assessment Years 2015-16, 2016-17 and 2017-18. As the facts of all the three petitions are identical, the same are heard analogously and are being disposed of by this common order. The facts of the Special Civil Application No. 3821 of 2022 where the notice for reopening for Assessment Year 2015-16 is under challenge, is treated as a lead matter. 5. Brief facts of the case of the petitioner for Assessment Year 2015-16 is as under:- The petitioner filed return of income on 27.11.2015 for Assessment Year 2015-16 declaring total loss of Rs. 33,86,25,522/-. The petitioner paid tax under Section 115JB of the Act as Minimum Alternate Tax (MAT) on the Book Profit of Rs. 43,28,88,179/- amounting to Rs. 80,084,313/-. 6. The respondent Assessing Officer conducted a detailed scrutiny by issuing notice under section 142 (1) dated 18.8.2017 calling for various details relating to amalgamation/ demerger, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to the impugned notice and the reasons for reopening on 10th June, 2021 contending inter-alia that the during the course of regular assessment, there is no failure on the part of the petitioner to disclose fully and truly all material facts for the assessment and as the impugned notice is issued beyond the period of 4 years, as per the proviso to Section 147 of the Act, the Assessing Officer would not have jurisdiction to issue the notice for reopening. 10. The petitioner also submitted on merits that during the course of regular scrutiny assessment, the Assessing Officer has called for the relevant details pertaining to the depreciation claimed by the petitioner on goodwill as well as additional depreciation claimed on the assets acquired after 1.11.2014. With regard to the issue of claiming depreciation on the assets transferred to the petitioner by M/s. Claris Lifesciences Ltd. in respect of WDV of Rs. 99.95 crore and CWIP of Rs. 96.94 crore as per the information received with regard to the admission of the said Company to the effect that the said amount pertains to accommodation entries of capital asset purchases and therefore, the resultant depreciation would not be allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner had obtained the valuation report of the expert valuer for valuation of each of the assets, which has been transferred to the petitioner by M/s. Claris Lifesciences Pvt. Limited and thereafter, worked out the excess of the consideration paid over the value of the net assets acquired and to be treated as goodwill amounting to Rs. 5.23 CR. It was submitted that the said details were provided during the course of the regular assessment and after considering the same, the Assessing Officer passed the Assessment Order under Section 143 (3) of the Act and hence, there is no failure on the part of the petitioner to disclose truly and fully all the material facts for the purpose of assessment and as such, the respondent Assessing Officer would not have any jurisdiction to issue the notice for reopening on the said reason. 15. With regard to the claim of additional depreciation, it was submitted that learned Senior Advocate Mr. S.N. Soparkar for the petitioner invited the attention of the Court to the page 36 of the paper book to point out that the additional depreciation was claimed by the petitioner on additions made between 1.10. 2014 to 31.3.2015 amounting to Rs. 1,499,371,846/- an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent Assessing Officer could not have formed a reasonable belief on any of the reasons recorded to arrive at the prima-facie conclusion that there is escapement of the income. 18. It was further submitted that irrespective of the reasons recorded as the total amount of escaped income estimated by the Assessing Officer is about Rs. 57 crores and the total loss carried forward by the petitioner as computed by the Assessing Officer in original assessment order is Rs. 33.04 Crores whereas the book profit under Section 115JB is Rs. 43.29 crores and considering the Quantum of escapement of Rs. 57 crores, the assessee would be liable to pay the tax on the basis of the MAT only. Reliance was placed on the decision of Aadeshwara Cement Co. Pvt. Ltd. Vs. Assistant Commissioner of Income Tax rendered on 23rd July, 2024 in the Special Civil Application No. 3474 of 2022 to submit that even if the addition as proposed in the impugned notice is made as per the reasons recorded being the income escaped from the assessment is the income which is taxed under Section 115JB is concerned, there would not be any taxable income after proposed addition. It was therefore submitted that the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 99.95 crore and CWIP of Rs. 96.94 crore forming part of the assets transferred in a Slump Sale would also not be available amounting to Rs.29.53 crore and deduction of Rs.22.49 crore under Section 32AC of the Act would not be available to the petitioner. It was therefore submitted that in view of such information received by the Assessing Officer subsequent to the Assessment Order passed under Section 143 (3) would be valid information so as to form a reason to believe that the income to the extent of the depreciation claimed by the assessee petitioner on such non-existent assets would result into escape income. 21. In support of his submission, reliance was placed on the decision of this Court in case of Yogendra Kumar Gupta Vs. Income Tax Officer reported in 366 ITR 186 Gujarat as well as the decision in case of Hinjay Construction Company Private Limited Vs. Income Tax Officer reported in 419 (2019) ITR 39 and the decision in case of Peass Industrial Engineers (P.) Ltd. Vs. Deputy Commissioner of Income Tax reported in (2016) 72 taxmann.com 302 (Gujarat). Referring to the above decisions of this Court, wherein the reliance was placed on the decision of the Hon'ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of the regular assessment, the Assessing Officer would not have any jurisdiction to reopen the assessment on those two reasons. Therefore, learned Senior Standing Counsel Mr. V.K. Patel has rightly concentrated on the third reason recorded for reopening by the Assessing Officer on the basis of the information received after the Assessment Order was passed in relation to search proceedings carried out in the case of M/s. Claris Lifesciences Pvt. Limited on 04.08.2015 and the application filed by the said Company before the Settlement Commission accepting that there were accommodation entries for purchase of the capital assets and the depreciation claimed on such assets was disallowed. 24. It is also not in dispute that the petitioner has purchased the injectable unit from its holding company M/s. Claris Lifesciences Pvt. Limited as a going concern in a Slump Sale basis. 25. Section 2 (42C) of the ACT defines 'Slump Sale' as under:- "(42C)"slump sale" means the transfer of one or more [undertaking, by any means,] for a lump sum consideration without values being assigned to the individual assets and liabilities in such [transfer]. Explanation 1.-For the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Slump Sale Agreement as well as in the valuation report. Therefore, the entire basis on which the reasons recorded is dehors the basic concept of Slump Sale which the petitioner and the acquisition of the injectable unit by the petitioner from its holding Company as a going concern for Rs. 554 crore. In such circumstances, the reasons recorded pertaining to the submission made by the holding Company of the petitioner before the Settlement Commission so as to disallow the depreciation claimed by the petitioner on such submission of accommodation entry for purchase of the capital assets on the WDV of such capital assets, it would be without any basis as the claim of depreciation made by the petitioner has nothing to do with the WDV reflected in the books of accounts of M/s. Claris Lifesciences Pvt. Ltd. as the petitioner is entitled to depreciation on the basis of the valuation made by the expert valuer of each of the assets forming part of the sale consideration of the Rs. 55 crore and the balance is treated as a goodwill upon which the depreciation was allowed by the Assessing Officer at the rate of 25% during the course of the regular assessment as per the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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