2015 (9) TMI 649

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.... challenges the CIT(A)'s action in upholding validity of the impugned re-opening taken recourse to by the Assessing Officer. The latter ground assails correctness of the Assessing Officer's action affirmed by the CIT(A) in restricting depreciation rate @15% instead of 20% on dumper vehicle thereby resulting in the impugned disallowance on merits of Rs. 14,81,512/-. 3. Both parties state very fairly that the assessee's former ground challenging legality of reopening goes to the very root of the matter. We take up this legal plea first for adjudication. 4. The assessee firm undertakes civil contracts. It filed its return of income on 31.12.2006 acknowledging nil income. The Assessing Officer completed a regular assessment on 26.12.2008 ....

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....ng unabsorbed depreciation of earlier years). In view of the above, I have to reason to believe that income chargeable to tax has escaped assessment and the case is fit for issue of notice u/s.148 of the I. T. Act." 3. The assessee filed its objections to the above stated reopening notice by turning it as a change of opinion as under: "We are in receipt of the reasons recorded for reopening of the assessment for assessment year 2006-07 under the cover of your letter under reference. On going through the contents of the recorded reasons for reopening of the assessment u/s. 147 of the Act, it transpires that the Assessing Officer has observed that "the business of the assessee during the previous year was 'civil contract' henc....

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....laimed by us during the course of assessment proceedings and he was satisfied himself that there was no point to draw any adverse inference on the point of rate of depreciation claimed on dumpers. Hence, the Assessing Officer has, after his satisfaction, made the assessment order for assessment year 2006-07 allowing the claim of depreciation @20% made on dumpers. However, without prejudice to the facts mentioned in preceding paragraph, we would like to state the brief facts of the case that the assessee had undertaken sub-contract from M/s. KMC Construction Limited, Allahabad who had been awarded a project of construction by Uttar Pradesh Government. The nature of work to be carried out by the assessee was to do the earth work for which ....

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....ase cited supra are identical and squarely applicable to the facts and circumstances of the case of the appellant and as such the appellant is entitled to claim depreciation @20% which is less than the allowable rate of depreciation on dumpers. We would like to draw your kind attention to the following judicial pronouncements: [1] CIT vs. Hindustan Marbles Ltd. 219 ITR 655. [2] Kaira District Co-Op. Milk Producers Union Ltd. vs. ACIT, 220 ITR 194. [3] Germen Remedies Ltd. vs. DCIT 287 ITR 494. [4] Parshuram Pottery Works Co. Ltd. vs. ITO 106 ITR 1. We request your good self to consider the objections raised in the preceding paragraphs before proceeding for ma kind of assessment in the case by disposing off the objection by....