M/S. SPEL SEMICONDUCTOR LTD.,CHENNAI vs. ITO, CORPORATE WARD - 6 (2), CHENNAI

आयकर अपील सं./ (िनधा�रण वष� / Assessment Year: 2012-13) M/s. Spel Semiconductor Ltd. ITO बनाम/ No. 5, CMDA Industries Estate Corporate Ward 6(2), Vs. Chennai – 603 209. Chennai – 600 034. �थायी लेखा सं./जीआइ आर सं./PAN/GIR No. AAACS-8519-B (अपीलाथ�/Appellant) : (��थ� / Respondent) अपीलाथ� की ओरसे/ Appellant by : Shri. R. Vijayaraghavan (Advocate ) – Ld. AR ��थ� की ओरसे/Respondent by : Shri. ARV Sreenivasan (Addl. CIT) – Ld. DR सुनवाई की तारीख/ : 05-04-2022 Date of Hearing घोषणा की तारीख / : 05-04-2022 Date of Pronouncement आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member)

1. 1. The Order of the Commissioner of Income Tax (Appeals) is contrary to law, facts and circumstances of the case.

2. The Commissioner of Income tax (Appeals) erred in dismissing the appeal without giving sufficient opportunity of being heard to the appellant.

3. The Commissioner of Income tax (Appeals) erred in confirming the reopening the assessment u/s.147 of the Act to disallow normal depreciation. 3.1 The Commissioner of Income tax (Appeals) should have found that the reopening was made by the Assessing officer to disallow normal depreciation on the ground that he had omitted to disallow the same in the order u/s 143(3) 3.2 The Commissioner of Income tax (Appeals) ought to have appreciated that the asset/equipment were purchased during the financial year 2010-11 but were commissioned and put to use for production during financial year 2011-12 relevant to the current assessment year 2012-13, and during the course of original assessment the Appellant had submitted the copies of the invoices of the assets to the Assessing Officer. 3.3 The Commissioner of Income tax (Appeals) ought to have appreciated that all the facts were available before the Assessing Officer at the time of original assessment under Section 143(3) and hence the reopening arose only due to change of opinion and not on account of concealment of any particulars by the Appellant; hence the order is to be quashed as being without jurisdiction. 3.4 The Appellant submits that the reopening of assessment cannot be done on the basis of change of opinion since the income which was alleged to have escaped assessment was based on the verification of income computation statement, which was available at the time of assessment proceedings and there was no new material brought on record to have reasons to believe that income has escaped assessment. 3.5 The Appellant submits that the principle that there must be tangible material on the basis of which an assessment is sought to be re-opened even within a period of four years is now well established by the judgment of the Hon'ble Supreme Court in CIT v. Kelvinator 320 ITR 561 (SC).

4. The Commissioner of Income Tax (Appeals) erred in confirming the disallowance of normal depreciation and additional depreciation on plant and machinery which were commissioned and put to use for production during financial year 2011-12 relevant to current assessment year 2012-13. 4.1 The Commissioner of Income Tax (Appeals) ought to have appreciated that during the original assessment the assessee had furnished full details of plant and machinery and after perusing the same, the Assessing Officer had granted depreciation as claimed by the Assessee and had only disallowed additional depreciation and, therefore, the reopening to disallow normal depreciation is not valid.