JUDGMENT :

DHIRAJ SINGH THAKUR, J.

1. In this petition, the petitioner challenges the notice, dated 30th March 2021 issued by respondent No. 1 under section 148 of the Income Tax Act, 1961 (‘the Act’) proposing to reopen the assessment for the assessment year 2016-17 on the ground that the income exigible to tax for the said assessment year has escaped assessment. The petitioner also challenges the order dated 25th February 2022, passed by respondent No. 4, whereby, the objections raised by the petitioner for the reopening the assessment have been disposed of.

2. Briefly stated the material facts are as under:

(a) The petitioner is a company engaged inter-alia in the business of FM Radio Broadcasting. Return of income for the assessment year 2016-17 was fled under section 139(1) of the Act on 16th October 2016 declaring a total loss of Rs. 7,88,83,872/-. By virtue of notice, dated 26th July 2017 issued under section 143(2) of the Act, as a part of the limited scrutiny among others identified the issue related to intangible assets for examination.

(b) In response thereto, the petitioner claims that it fled the relevant details, supported by documents explaining as to how the amounts payable under the agreement executed with the Ministry of Information and Broadcasting on migration from Phase-II to Phase-III were capitalized as “intangible assets” and the basis for claiming depreciation thereunder. A copy of this response dated 10th August 2017 is also placed on record.

(c) Thereafter, notices are stated to have been issued under section 142(1) seeking certain details of the assessee, pursuant to which the same were furnished including the audit report, profit and loss balance-sheet etc. Finally, an order of assessment dated 22nd October 2018 came to be passed accepting the return of income of the petitioner which included the claim of depreciation under section 32 of the Act on intangible assets, without making any adjustment.

(d) A notice dated 30th March 2021 was issued by respondent No. 1 invoking the provisions of section 148 of the Act seeking to reopen the assessment for the assessment year 2016-17 require the petitioner to file a return in the prescribed form for the said assessment year, which was fled by the petitioner and also sought the reasons for reopening of the assessment.

3. The following were the reasons for reopening of the assessment for the assessment year 2016-17:

“REASONS FOR REOPENING OF THE ASSESSMENT U/S. 147 OF THE ACT

1. The assessee filed its return on income on 16.10.2016 declaring income at total loss of Rs. 7,88,83,872/- and the assessment was completed u/s 143(3) vide order dated 22.10.2018 accepting the returned income. The assessee is engaged in business of radio broadcasting.

2.1 Section 35ABB of the Income Tax Act provides that any capital expenditure actually paid for obtaining license to operate telecommunication services shall be allowed as deduction in equal installments during the number of years for which license is in force. Further as discussed in Para 12 of the ITAT, Delhi in case of M/s. Digital Radio (Delhi) Broadcasting Ltd. Vide ITA No. 4364/Del/2011 dated 24.11.2015, the scope of telecommunication services was increased to include the broadcasting services and cable services also, hence, provisions of Section 35ABB will apply to assessee engaged in these services. The Board has issued instructions from time to time that in scrutiny assessment, assessing officer shall make correct assessment of income or loss and determine correct sum payable by him or refundable to him on the basis of such assessment.

2.2 The assessee company was permission holder for radio broadcasting in the region of Delhi under Phase II of policy (valid upto August, 2016). In 2015, the Government has pronounced fresh policy (Phase III effective from 01.04.2015) and the assessee was given option to migrate to Phase III by paying one time non-refundable entry fee of Rs. 33,33,78,328/- for 15 years. The assessee opted for