IMPORTANT POINT
Reopening of tax assessments on previously decided issues without new evidence violates the principle of finality in tax law.

JUDGMENT :

Bhargav D. Karia, J.

1. Heard learned advocate Mr. S.N. Divatia for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent.

2. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Sanghani waives service of notice of rule on behalf of respondent.

3. Having regard to the controversy involved which is in a narrow compass, with the consent of learned advocates for the respective parties, the matter is taken up for final hearing.

4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged notice issued under Section 148 of the Income Tax Act, 1961 (for short “the Act”) for reopening the assessment for the Assessment Year 2016-2017.

5. The brief facts of the case are that the petitioner which is a partnership firm is engaged in the business of hiring of Earth Moving equipment and Commercial Vehicles for providing excavators, dozor, graders, rock drill machines etc. with operators for excavation of overburden and minerals.

5.1. For the year under consideration, the assessee filed return of income on 15.09.2016 declaring total income at Rs.18,29,24,740/- which included the depreciation on tipper at the rate of 15% amounting to Rs.7,81,66,149/-.

5.2. The case of the petitioner was selected for scrutiny assessment and after considering the various details and evidence, the Assessing Officer completed regular assessment under Section 143(3) of the Act on 01.12.2018 by determining the total income of Rs.18,35,05,070/-. The petitioner thereafter received notice under Section 148 of the Act dated 30.06.2021 proposing to reassess its total income and consequent upon the order passed by the Hon’ble Supreme Court in case of Union of India Vs. Ashish Agarwal reported in 448 ITR 1 SC, the notice under Section 148A(b) of the Act was issued on 23.05.2022.

5.3. By the aforesaid notice under Section 148A(b) dated 23.05.2022, the assessment was sought to be reopened on the basis of the information in possession with the Assessing Officer to the effect that the claim of higher depreciation on Tipper- Plant & Machinery was not admissible at 30% since the petitioner was in business of mining and not in business of motor lorries on hire and accordingly, the depreciation amounting to Rs.7,81,66,149/- was not allowable.

5.4. The petitioner in response to the aforesaid notice, submitted the reply on 03.06.2022 contending inter alia that the petitioner was not engaged into the business of mining but was engaged in the business of hiring the equipments and it was further stated that the nature of business has not changed since Assessment Year 2010-11.

5.5. The respondent however by order dated 30.07.2022 passed under Section 148A(d) of the Act held that the income of the depreciation of Rs.7,81,66,149/- has escaped assessment for the year under consideration by way of excess allowance of depreciation.

5.6. Being aggrieved, the petitioner has preferred this petition.

6. Learned advocate Mr. Divatia for the petitioner submitted that the respondent Assessing Officer while rejecting the objections raised by the petitioner has recorded that the disallowance was made on similar issues in past and the matter was carried in appeal in this Court wherein it was held in favour of the assessee however the SLP preferred by the Department was dismissed on the ground of delay, and therefore the respondent Assessing Officer has invoked the provision of Section 148 for reopening as the Hon’ble Supreme Court had not decided the case on merits.

6.1. It was further pointed out that during the course of regular assessment also, the assessee has submitted the details about the nature of business carried on by the petitioner as well as the details of the depreciation claimed at the rate of 30% and after considering the same, the order under Section 143(3) of the Act was passed.

7. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent submitted that the claim of the pe