9911796707
TMI Blog2003 (12) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... dual truck owners and were used for commercial hiring. Clause 3(h) of the agreement of lease furnished with the paper book at p. 17 stipulated that the vehicles shall be registered as public transport vehicles and shall be maintained as per the relevant rules of the Motor Vehicle Department of the relevant States. 3. In its returns for asst. yrs. 1993-94 and 1994-95, the assessee claimed higher rate of depreciation on the ground that the vehicles were used for public/commercial hiring and all statements with requisite information for claiming depreciation at higher rate were filed along with the returns. The assessment for asst. yr. 1993-94 was taken up for scrutiny and was completed under s. 143(3) accepting the claim of higher rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas in the present case, the AO reopened the assessment after having accepted the contention of the assessee that higher depreciation was allowable. Therefore, the assessee contended that the facts of the two cases are different and, therefore, the ratio of the decision of the Hon'ble Calcutta High Court would not be applicable in the present case. On the other hand, the assessee referred to the decision of the jurisdictional High Court in the case of Allahabad Bank vs. CIT (1992) 108 CTR (Cal) 186 : (1993) 199 ITR 664 (Cal) in which it has been held by the Hon'ble High Court that when statement claiming the depreciation was filed along with the return and depreciation was allowed on the basis of such statement in the original assessment, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e's business and the entry in the appendix refers to the user it should be put to. Once it is accepted that the leasing out of the vehicles is one of the modes of doing business by the assessee and in fact the income from such leasing is treated as business of the assessee, it would be clearly contradictory in terms to hold that the vehicles in question were not used wholly for the purpose of assessee's business. It was also mentioned that the Department went in appeal before the Supreme Court against the decision of the Hon'ble Delhi High Court in the case reported in (2003) 179 CTR (Del) 23 : (2003) 259 ITR 69 (Del) and that the Hon'ble Supreme Court had declined to admit the SLP which was reported in (2003) 263 ITR 3 (St). Hence, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion. 9. Having taken into consideration the decisions of several High Courts and that of the Hon'ble Supreme Court, we are of the view that in this case what the AO actually did was only changed his opinion while initiating the proceedings under s. 147. Full facts regarding the claim of depreciation at higher rate was available before the AO in asst. yr. 1993-94 where the assessment was done after scrutinising all the facts and the AO has consistently taken a view that higher depreciation was available. If subsequently he changed his view that higher depreciation was not available, he should not take recourse to s. 147 in view of the decisions of various High Courts and the view taken by the apex Court in this regard. Thus, we find th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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