2016 (1) TMI 1107

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....ssment year 20102011, the petitioner had filed return of income on 27.9.2010 declaring loss of 11.78 crores (rounded off). Return was taken in scrutiny. Scrutiny assessment was framed on 28.2.2014. To reopen such assessment, the Assessing Officer has issued the said notice. At the request of the petitioner, the Assessing Officer supplied the reasons recorded by her for issuing the notice which read as under : "In this case, the assessee company engaged in the business of operating container handling terminal and container freight station operations, software services and related business filed its return of inocme declaring loss at Rs. 11,78,38,140/. The case was selected for scrutinyand the assessment was finalised u/s.14....

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....n 32 of the Act, and hence not eligible for any depreciation. The assessee is allowed to use the infrastructure facility only, but he is not the owner of the infrastructure. Ownership is one of the conditions for admissibility of depreciation allowance. The assessee has no business or commercial right on the infrastructure facility since the assessee has no right to transfer this facility to others. Transfer can be made by owner of infrastructure only. In view of the above, I have reasons to believe that the depreciation allowed on the "infrastructure Usage Facility" was not in order. The irregular allowance of depreciation in A.Y. 2010-11 of Rs. 18,01,30,162/has led to escapement of income on account of failure o....

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....entire deduction as the expenditure being in the nature of revenue expenditure. 5. Learned counsel Ms. Bhatt for the Revenue opposed the petition. She had made available the original file of assessment to enable us to decide the petitioner's first contention regarding the audit objection. 6. In this respect, we have noticed a letter dated 30.3.2015 written by the Assessing Officer to the Commissioner of Income Tax in which after referring to audit objections regarding 25% depreciation on the infrastructure usage facility, she noted as under : "Comments of the AO 4. The similar issue was raised in A.Y. 2007-08 & 2008-09. This office has submitted detailed replies and stated that the objection is not accep....