Bombay High Court
Pr. Commissioner Of Income Tax - 1 vs M/S Tata Communications Ltd (Formerly ... on 22 January, 2019
Bench: Akil Kureshi, M.S.Sanklecha
S.R.JOSHI itxa-1671-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO.1671 OF 2016
The Pr. Commissioner of Income Tax-1 .. Appellant.
v/s.
M/s. Tata Communications Ltd., .. Respondent.
Mr. Suresh Kumar, for the Appellant.
Mr. J. D. Mistri, Sr. Advocate with Mr. Anil Wani and Ms. Supriya
Devergudi i/b. ANS Law Associates, for the Respondent.
CORAM: AKIL KURESHI &
M.S.SANKLECHA, JJ.
DATE : 22nd JANUARY, 2019.
P.C:-
The Revenue is in Appeal against the Judgment of the Income Tax Appellate Tribunal (in short "the Tribunal"), raising the following questions for our consideration:-
"(a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in quashing the re-opening of the assessment and thereby invalidating the first reassessment order?
(b) Whether on the facts and in the circumstances of the case and in law, the Tribunal is correct in holding that there is no fresh/tangible material in the possession of AO while recording his reasons for reopening of the assessment for AY 2001-02, even when there is a tangible material which came before the AO during the course of assessment proceedings and order of the assessment for AY 2000-01?"::: Uploaded on - 24/01/2019 ::: Downloaded on - 24/01/2019 23:22:58 :::
S.R.JOSHI itxa-1671-2016.odt 2 The issue pertains to Assessment Year 2001-02. The Assessee contested the validity of notice of re-opening of the assessment, issued by the Assessing Officer. The Tribunal held that, the notice of re-opening of an assessment, was invalid. This was on the ground that, the Assessing Officer during original scrutiny assessment had scrutinized the claim of the assessee which was sought to be disturbed by the Assessing Officer during the process of re-assessment.
3 Having heard the learned Counsel for the parties and having perused the documents on record, we notice that, the Assessing Officer had issued the notice of re-opening of assessment, disputing the certain claim of the assessee towards depreciation. In the context of such reasons, the Tribunal in the impugned judgment held that, the entire issue was examined by the Assessing Officer in the original scrutiny assessment and, therefore, in the absence of any fresh tangible material available with the Assessing Officer, re-opening of the assessment would not be permissible.
We may reproduce the relevant portion of the judgment of the Tribunal as under:-
" Further a careful reading of the assessment order demonstrates that the AO has extensively referred to assessee's claim of depreciation on different items of fixed assets. Therefore, it cannot be accepted that claim of depreciation on GDS and interconnect TAS would have escaped the attention of the AO as in the statement of depreciation the assessee has specifically mentioned the claim of depreciation under different heads. In addition to the information disclosed in the tax audit report, it is observed that in letter dated 19.11.03 assessee in response to query raised by the AO during the original assessment proceeding has specifically explained the justification of claim of depreciation at 60% on GDS by treating it as computer. The aforesaid facts would clearly suggest that in course of original assessment proceeding under section 143(3) of the Act the AO has examined ::: Uploaded on - 24/01/2019 ::: Downloaded on - 24/01/2019 23:22:58 ::: S.R.JOSHI itxa-1671-2016.odt not only assessee's claim of depreciation on GDS and interconnect TAS but has accepted the claim after application of mind. Whether the acceptance of assessee's claim by the AO is proper or improper is a different issue. But, facts remain the AO has examined the issue and completed the assessment. That being the case in absence of any fresh/tangible material coming to the possession of the AO, the reopening of assessment on the basis of very same material would amount to review of the earlier order passed on a mere change of opinion as the AO has already formed an opinion with regard to assessee's claim of depreciation, whether rightly or wrongly."
4 It can thus be seen that, the ground on which the Assessing Officer desired to re-open the assessment,was scrutinized by him during the original assessment proceeding. The Tribunal, therefore, correctly held that re-opening of an assessment was invalid.
5 Tax Appeal is, therefore, dismissed.
(M.S.SANKLECHA,J.) (AKIL KURESHI,J.)
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