TaxTMI 
TaxTMI 
2015 (6) TMI 668
X X X X Extracts X X X X
X X X X Extracts X X X X
....he show cause notice is reproduced in the impugned order. However, the ld. Commissioner of Income Tax set aside the impugned assessment order on one point/issue with regard to grant of depreciation on forging press. Therefore, for the purpose of disposal of this appeal, the issue of depreciation on the same item is considered. The ld. Commissioner of Income Tax in the show cause notice mentioned that assessee has commissioned 8000 MT Forging Press on 29.03.2008. Depreciation @ 50% of the normal rate was claimed on the same and was allowed. The assessee has however, shown building under construction as on 31.03.2008 which was not put to use on or before 31.03.2008. The Assessing Officer was, therefore, required to enquire into these facts in detail and to ascertain as to whether the said building was for the purpose of installation of the new forging press. I f so, then apparently the press also had not been put to use as the building was still under construction. The Assessing Officer was, therefore, required to examine this issue critically as the forging press was commissioned at the fag end of the year. Similar exercise was also to be conducted in respect of other machineries as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to re-assess income of the assessee after giving opportunity of being heard to the assessee. 5. Ld. counsel for the assessee reiterated the submissions made before authorities below and submitted that ld. Commissioner of Income Tax has issued show cause notice on various grounds/reasons but ultimately assessment order was set aside only on one reason of grant of depreciation on forging press. He has submitted that assessee filed a detailed reply before ld. Commissioner of Income Tax (PB-3) which is supported by al l the documents in which it was explained that the depreciation was allowed by Assessing Officer after examining the issue in detail and considering the documents produced before him. It was also submitted that 8000 MT forging press was purchased and installed in the old business premises of the assessee which has nothing to do with the new building which is at distance from the old building. The assessee claimed depreciation on new building after it was put to use in March,2010 and claimed depreciation in the assessment year 2010-11. In the old building only forging press was installed. He has referred to PB-80 which is query letter issued by Assessing Off....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the case of CIT Vs Shahabad Cooperative Sugar Mi l ls Ltd. 201 Taxman 66 in which it was held that assessee would be entitled to depreciation on plant & machinery which was not actual ly used but was kept ready for use. He has also relied upon unreported decision of the ITAT Chandigarh Bench in the case of Lakshmi Energy and Produce V ACIT dated 26.02.2014 copy of the same is f i led in the Paper Book. Ld. counsel for the assessee therefore, submitted that ld. Commissioner of Income Tax should not have invoked the jurisdiction under section 263 of the Income Tax Act in the matter. 6. On the other hand, ld. DR relied upon impugned order under section 263 of the Income Tax Act and submitted that Assessing Officer did not enquire into the use of plant & machinery and no details have been furnished. Since, the assessee did not produce document between the assessee and the supplier of the machine of put to use on a particular day, therefore, ld. Commissioner of Income Tax correctly set aside the impugned order under section 263 of the Income Tax Act. 7. We have considered rival submissions and material available on record. The assessee in Paper Book has filed copy of the show cause ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t considered explanation of the assessee in proper perspective. The order of revision without considering explanation was held to be not val id by Hon'ble Gauhati High Court in the case of Smt. Lila Choudhury V CIT 289 ITR 226 in which Hon'ble Gauhati High Court held as under : "Held, that in the order the Commissioner had not recorded any opinion that the order of assessment of the petitioner for the assessment year 1992-93 was erroneous and prejudicial to the interests of the Revenue. That was the opinion recorded in the notice dated August 14/19,1996, but the opinion being recorded in a notice issued to the petitioner asking to show cause, must be understood to be rebuttable. Such opinion was required to be reiterated after hearing the petitioner and after holding the necessary enquiry. On receipt of the show-cause notice, the petitioner submitted an elaborate reply. The Commissioner on receipt of the reply of the petitioner could not have ignored the same. Rather, it was incumbent on the Commissioner to consider the explanations offered and on that basis to record his opinion/conclusion. Moreover, the competent criminal court had son-in-law of the petitioner from any l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fying that forging press had been successfully installed at the plant of the assessee. Copy of such installation certificate dated 29.03.2008 is filed in the Paper Book at page 7. This has been issued by the supplier and the supplier has certified that forging press has been successful ly installed at the plant of the assessee. Therefore, there is no reason for ld. Commissioner of Income Tax to hold that no such copies of such documents have been filed before him for starting of the warranty/guarantee of the forging press in question. 9. The Hon'ble Bombay High Court in the case of CIT V Gabriel India Ltd. 203 ITR 108 held as under : "Held, that the Income-tax Officer in this case had made enquiries in regard to the nature of the expenditure incurred by the assessee. The assessee had given a detailed explanation in that regard by a letter in writing. All these were part of the record of the case. Evidently, the claim was allowed by the Income-tax Officer on being satisfied with the explanation assessee. This decision of the Income-tax Officer could not be held to be "erroneous" simply because in his order he did not make an elaborate discussion in that regard. Mor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icer, after considering explanation of the assessee, partly disallowed depreciation as well, will prove that issue of depreciation was correctly examined by the Assessing Officer at assessment stage. Therefore, when the Assessing Officer adopted one of the courses permissible in law and the view taken by the Assessing Officer was permissible as per law to which the ld. Commissioner of Income Tax may not agree, would not treat the assessment order to be erroneous and prejudicial to the interest of revenue. Ld. Commissioner of Income Tax has not held that the view taken by the Assessing Officer is unsustainable in law. It, therefore, appears that the ld. Commissioner of Income Tax changed the opinion by reappraising the evidence already on record, thus it would not give revisional jurisdiction to him under section 263 of the Act to set aside the assessment order. 13. In view of the above discussion, we are satisfied that Assessing Officer has properly enquired into the claim of depreciation of the assessee on forging press at the assessment stage and has carried out proper verification. Therefore, the ld. Commissioner of Income Tax was not justified in invoking jurisdiction under se....