TaxTMI 
TaxTMI 
2023 (3) TMI 466
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....l of the Assessee under wrong impression that the Assessee has settled the dispute under Vivad se Vishwas scheme. 2. The Ld. AR submitted that the Assessee has also raised a legal ground challenging the re-opening of the assessment u/s 148 of the Act. Accordingly, he prayed the legal ground may kindly be heard and the adjudicated by the bench. 3. The Ld.AR submitted that theassessment for the year under the consideration was originally completed by the Assessing Officer u/s 143(3) of the Act on 18.06.2016. In the return of income the Assessee had claimed software expanses of 2.61 crore, as revenue expenditure. The Assessing Officer held that the software expanses are capital in nature and the accordingly, disallowed the above said cla....
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....2) 140 taxmann.com 369. Accordingly, he prayed the impugned re-opening assessment order may be held as bad. 6. The Ld. DR, on the contrary, submitted that the Assessing Officer has re-opened the assessment on proper reasoning. 7. We heard rival contentions and perused the record. We notice that the only reason for reopening of assessment is to revise the rate of depreciation allowable on the software capitalized by the AO. As noticed earlier, the AO had allowed depreciation @ 60% in the original assessment proceedings and the reopening of assessment was done only to restrict the rate of depreciation to 25%. The question is whether the decision of AO to revise the depreciation can be said to be mere change of opinion. If the answer is ....
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.... well as the Hon'ble Supreme Court of India. 5. Now, coming to the reasons, the reasons recorded clearly indicate that re-opening is proposed on the basis of change of opinion which is not permissible and the reasons do not disclose that there were non disclosure of material fact by petitioner though there is general statement made that petitioner's income has escaped assessment on account of failure on the part of petitioner to disclose truly and fully all material facts. In our view, it is only made with an attempt to overcome restrictions in re-opening as per proviso to section 147 of the Act ................. 7. In paragraph no. 2, the Assessing Officer admits that in the Note 8 list of fixed assets sh....
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....ure has put in the explanation to Section 34(1) of the Act. The duty however, does not extend beyond the full and truthful disclosure of all primary facts. Once all the primary facts are before the assessing authority, he requires further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. If from primary facts more inferences than one could be drawn, it would not be possible to say that the assessee should have drawn any particular inference and communicated it to the assessing authority. The explanation does not have the effect of enlarging the section, by casting a duty on the assessee to disclose inferences, to draw proper infere....