(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged notice under section 148 of the Income Tax Act issued by the Assessing Officer on 10.3.2003 seeking to reopen the assessment of the petitioner company for the assessment year 1998-1999. The company filed its return of income for the year under consideration on 29.2.2000. In such return, the company had claimed depreciation at the rate of 40% on the Written Down Value of the commercial vehicle owned by the company. Such return was accepted under section 143(1) of the Act without scrutiny. Such return was sought to be reopened for which impugned notice came to be issued. The Assessing Officer had recorded the reasons in which it was primarily pointed out that the claim of depreciation at the rate of 40% on the Written Down Value of the cost of vehicle of Rs.1,90,00,091/- was excessive. According to the Assessing Officer such depreciation was available at the reduced rate of 20% and further that since the petitioner company had acquired such vehicles only in second half of the year, it was entitled to 50% of such depreciation in any case.
2. Be that as it may, the petitioner challenged the notice without raising any objection with the Assessing Officer though by the time impugned notice came to be issued, the Supreme Court had already given its decision in case of GKN Driveshafts(India) Ltd. v. Income-Tax Officer and others reported in 259 ITR 19.
3. Counsel for the petitioner submitted that the petitioner company was a MAT company under section 115JA/115JB of the Act. Even after discarding higher rate of depreciation claimed and accepting the original return, the company would have no tax liability higher than what is computed under section 115JA of the Act. He therefore, submitted that it cannot be stated that income chargeable to tax had escaped assessment.
4. Primarily in view of the fact that no such contention has been raised in the petition, we are not prepared to take the revenue by surprise. In view of the decision of the Apex Court in case of GKN Driveshafts(India) Ltd.(supra), however, we permit the petitioners to raise all the objections before the Assessing Officer who shall dispose of such objections in accordance with law before proceeding further with the assessment.
5. With above directions, the petitions are disposed of. Interim relief, if any, stands vacated.
(Akil Kureshi,J.) (Harsha Devani,J.) (raghu)