1997 (10) TMI 102

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....and rockdrill. In response to show-cause notice a reply was filed. A copy of the Board's Circular F.No./236/27/2/74-A & PAC-II, dt. 24th Feb., 1975, and a copy of the order of the Tribunal in ITA No. 1164/Jp/87 dt. 20th April, 1990, was filed. It was further submitted that the order of the investment allowance did not suffer from any error and the investment allowance was correctly allowed. It was further submitted that the AO particularly raised the query regarding the depreciation of these items and reply was filed and after considering the same the claim was allowed. Therefore, no action is warranted under s. 263. The CIT was not satisfied with the reply and he stated in para 2 of his order that: "2. The assessee's arguments have been....

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....d because of change of opinion the assessment cannot be held erroneous under s. 263. On merit, the learned counsel also made submissions and he placed reliance on few decisions of the Tribunal and other High Courts of the country. 3. On the other hand, the learned Departmental Representative strongly supported the order of the CIT and he further stated that tractor is a road transport vehicle and cannot be allowed full depreciation by holding that this is part of machine used for mining activity. Regarding the decision of the Supreme Court, it was submitted by the learned Departmental Representative that this is a distinguishable case because in that case the action was taken under s. 147(b) and here in this case the action is taken unde....

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....e. 4.1 We have also perused the ratio of decision of the Tribunal of Jaipur Bench in case of Mewar Chemical Products Ltd. vs. Asstt. CIT (1994) 50 TTJ (Jp) 80 : 80 Taxman-(Mag) 229, wherein it was decided that whether CIT having brought nothing on record to show that information furnished by the assessee before AO was false or incorrect, his order under s. 263 setting aside AO's assessment, being based on suspicion, conjectures and surmises, was liable to be cancelled. Here in the present case we notice that the AO had raised a query regarding the investment allowance and allowability and the clarification was filed by the assessee which was accepted. Therefore, there was no material on record that any adverse or incorrect material was f....