2015 (12) TMI 1285

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....ally raised two effective grounds, i.e., (i) the ld. CIT(A) was not justified in confirming the disallowance made by the AO and (ii) the ld. CIT(A) erred in holding that the rate of depreciation of furniture / buildings on hoardings and the rate of depreciation of private vehicles be allowed on mobile hoarding van on hire. 2.1 Thereafter the assessee preferred additional ground before this Tribunal on 16.04.2015 which was admitted by this Tribunal and later the assessee filed revised additional ground on 28.09.2015, which is also admitted as it goes to the root of the matter and does not require any verification of facts thereon. The same is reproduced as under: "1) That reopening of assessment is bad in law since it is based on....

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....he depreciation at 30% is not allowable to the own assets but it is only available to the hired assets against which the assessee is before us with this appeal. 4. The ld. Counsel for the assessee contended that the reopening of assessment is erroneous and bad in law and not in accordance with the settled principles of law. Further, the ld. Counsel contended that the assessee disclosed every material fact before the AO during original assessment on the relevant claims. The AO, only on the mere change of opinion, issued a notice under section 148 but nothing was before him to reopen the assessment. The ld. DR contended that in spite of knowing fully that the assessee is eligible for depreciation @15% and intentionally adopted at 30% depre....

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....is of "mere change of opinion", which cannot be per se reason to reopen. There is conceptual difference between power to review and power to reassess. The AO has no power to review, he has the power to re-assess. But assessment has to be based on fulfillment of certain conditions and if the concept of "change of opinion" is removed, then, in the garb of reopening of assessment, review would take place. Hon'ble Supreme Court in the case of CIT vs.Kelvinator of India India, 320 ITR 561 has held that the Aa must have some tangible material for reopening the assessment." 6. In the present case, we are of the view that the AO reopened the assessment after having accepted the contention of the assessee that higher rate of depreciation is a....