TaxTMI 
TaxTMI 
2016 (11) TMI 362
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....f appeal at any time before or during the hearing of this appeal." 2. The Ld. Sr. Dr relying upon the assessment order dated 21.03.2013 u/s 147/143(3) of the Act submitted that the re-opening has been necessitated as the rate of depreciation quoted by the assessee has been blindly accepted by the AO by his order u/s 143(3). It was his submission that in terms of Explanation to section 147, income has escaped assessment and since the wrong rate of depreciation was quoted by the assessee, it is a case where full and true disclosure has not been made by the assessee and the objection of the assessee and the re-joinder to the rejection of the objections, both have been dealt with by the AO by way of a speaking order. Accordingly on account of....
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.... Apart from that it was also submitted there is nothing in the order which shows what is the failure on the part of the assessee as the calculation has been done by the AO himself. Thus relying upon the principle laid down by the Hon'ble High Court in the case of CIT vs Usha International Ltd. (page 57 & 59) order dated 21.09.2012, it was submitted that the departmental appeal be dismissed. Specific attention was invited to the observation made in para 13 of the said order at page 62 and paras 23 and 24 at page 76 of the Paper Book filed. 4. Reliance was also placed upon Nawany Corp. (I) Ltd. vs ITO [2012] 21 taxmann.com 217 (Mum.) [D.o.D.-20.04.2012] at pages 1 to 6 in the supplementary case law Paper Book filed for the proposition that w....
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....he calculation of the depreciation allowable was done by the AO himself. In these facts, I find the reliance placed by the Ld.AR on paras 13, 23 and 24 in the case of CIT vs Usha International Ltd. (cited supra) is justified. For ready-reference, these specific paras are extracted hereunder:- 13. "It is therefore clear from the aforesaid position that: (1) Reassessment proceedings can be validly initiated in case return of income is processed under Section 143(1) and no scrutiny assessment is undertaken. In such cases there is no change of opinion; (2) Reassessment proceedings will be invalid in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. Reassessment proceedings in the s....
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....aised queries and questions on other aspects. Again the answer to this question stands concluded by the judgment of the Full Bench of this court in Kelvinator (supra)..................." (emphasis provided) 6.1. Similarly following the ratio of the decision of the Hon'ble Calcutta High Court in the case of Berger Paints or CIT [2010] 322 ITR 369 (Cal.) followed by the ITAT in the case of Nawany Corp. (I) Ltd. (cited supra). I find that re-opening in the peculiar facts and circumstances of the case by the AO in the absence of any new material justifying the re-opening and on the very same facts tantamounts to abuse of his power. In the peculiar facts and circumstances of the case in the absence of any rebuttal on facts and law, I find th....