TaxTMI 
TaxTMI 
2024 (1) TMI 314
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....ks were granted to the respondents to file a counter-affidavit in the matter. The last opportunity in this behalf was given on 22.05.2023. Once again, further, six weeks were granted to the respondent/revenue to file a counter-affidavit in the matter. 5. As a matter of fact, opportunity on the previous date was given despite the order dated 18.07.2022 noting that respondents were being given a last and final opportunity to file a counter-affidavit, albeit within four weeks. 6. Unfortunately, the counter-affidavit has not seen the light of the day. 7. Since the matter has been pending for the past four years, we do not deem it fit to grant further time. We have thus decided to hear the matter, based on the record presently available with us. Background: 8. For the purpose of adjudication, the following broad facts are required to be noticed: 9. The petitioner had filed its Return of Income (ROI) on 28.11.2012. Via the said ROI, the petitioner declared its total income as Rs. 57,37,84,404/-. The petitioner's ROI was picked for scrutiny and accordingly, notice dated 08/08/2013 was issued under Section 143(2) of the Act. 10. The record shows that in the course of t....
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....y the AO, the petitioner filed its objections on 20.06.2019. Amongst others, one of the assertion made by the petitioner was that this was the case of a change of opinion without any new material coming to the fore. In sum, it was emphasized that reassessment proceedings were barred under the provisions of the first proviso appended to Section 147 of the Act. 16.1 The AO disposed of the objections via order dated 01.07.2019 and while disposing of objections, took recourse to Explanation 1 and Explanation 2 (c) (iv) appended to Section 147 of the Act. 17. Since, according to the petitioner, the order dated 01.07.2019 did not constitute a speaking order, a grievance was articulated in that behalf via communication dated 02.07.2019. The AO dealt with the same via order dated 26.07.2019. In effect, the AO emphasised that the objections filed by the petitioner had been disposed of via order dated 01.07.2019. 17.1 It is in these circumstances, that the petitioner approached the court via the instant writ petition. Submissions of Counsel 18. As noticed at the outset, the respondent/revenue, for reasons best known to it, have not filed a counter-affidavit in the matter. Notw....
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.... depreciation is claimed. Prove with evidences the life cycle of these fixed assets. Enclose purchases of such temporary erection. Show cause why these erection should not be treated as part of assessee P & M. It is very important to note here that assessee company does not have any block of assets on account of 'Building'. The block 'building' under bloke of assets concepts has three categories buildings - Residential @5%, building other than residential-10% 80 1A-(4)(i) building @100% and purely temporary erections such as wooden structures @ 100%. In the case of the assessee the nature of these temporary erection is listed as follows which are primarily leasehold improvements in the used premises on which assessee is conducting is business and by no imagination the same can be treated as Purely Temporary in nature as the business of the assessee is ongoing from these premises. It is evident from above that all above expenditure are lease hold improved in leased building taken on rent. The basic nature of these fixed assets is either furniture & fixtures or part of office buildings both carries depreciation rate of 10%. Therefore, show cause why depreciation on above ass....
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....t any victim over the temporary erections after completion/ termination of the lease contract as these assets are immovable. The Assessee would also like to highlight that certain items of Leasehold expenditure have been categorized by the Assessee as 'Office Furniture' with 10% depreciation rate as these assets are movable and can be used by the Assessee even after the expiry of lease of the building. These leasehold comprise assets such as cupboards, electrical fittings etc. Please refer page 19 of the Form 3CD attached as Annexure 4. A snippet of the tax audit report is as below: Further, the Assessee would like to submit that the Hon'ble Madras High court in the case of C.I.T vs. Print Systems and Products 285 ITR 337, has held that assessee was entitled to 100% depreciation in respect of expenses incurred by it on construction of temporary structures in the lease property such as temporary partition , false ceiling painting and walls etc. A copy of the order IS attached as Annexure 5" 26. Besides this, as we have recorded hereinabove, a site visit was also carried out by an official deputed by the AO on 14.01.2016. It was only thereaft....
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.... 29. In our view, this is a case which involves a change of opinion notwithstanding the provision referred to by the AO in his reasons to believe recorded on 05.02.2019. 30. There is no dispute that depreciation on subject temporary structure(s) was claimed by the petitioner. In fact there is no cavil that once a structure is categorized as temporary, the deprecation rate provided under Rule 5 of Appendix I appended to the Income Tax Rules, 1962, is 100%. 31. The arguments advanced by Mr Singh that merely because books of account were made available to the AO and he could have discovered material evidence had he been diligent could not be the reason for not triggering reassessment proceedings against the petitioner, does not find favour with us. 32. This is not a case where an aspect was not in the notice of the AO and that he could have discovered by employing diligence. The issue concerning the claim of depreciation by the petitioner with regard to the subject temporary structure(s) was flagged by the AO. The petitioner submitted its reply along with the relevant details and material. The AO after considering the same, accepted the claim made by the petitioner with rega....