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Avtec Limited Vs. Dy. Commissioner Of Income Tax
June, 28th 2017
$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
18.
+                                        W.P.(C) 519/2016

        AVTEC LIMITED                                       ..... Petitioner
                                Through: Mr. Salil Kapoor, Mr. Sanat Kapoor, Ms.
                                Ananya Kapoor, Mr. Sumit Lal Chandani and Ms.
                                Soumya Singh, Advocates.

                                versus

        DY. COMMISSIONER OF INCOME TAX            ..... Respondent
                     Through: Mr. Ashok K. Manchanda, Senior
                     Standing Counsel.

                                              WITH

19.
+                                        W.P.(C) 522/2016

        AVTEC LIMITED                                       ..... Petitioner
                                Through: Mr. Salil Kapoor, Mr. Sanat Kapoor, Ms.
                                Ananya Kapoor, Mr. Sumit Lal Chandani and Ms.
                                Soumya Singh, Advocates.

                                versus

        DY. COMMISSIONER OF INCOME TAX             ..... Respondent
                     Through: Mr. Ashok K. Manchanda, Senior
                     Standing Counsel.

                                              AND
20.
+                                        W.P.(C) 761/2016

        AVTEC LIMITED                                       ..... Petitioner
                                Through: Mr. Salil Kapoor, Mr. Sanat Kapoor, Ms.

W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                     Page 1 of 12
                                Ananya Kapoor, Mr. Sumit Lal Chandani and Ms.
                                Soumya Singh, Advocates.

                                versus

        DY. COMMISSIONER OF INCOME TAX             ..... Respondent
                     Through: Mr. Ashok K. Manchanda, Senior
                     Standing Counsel.

        CORAM:
        JUSTICE S. MURALIDHAR
        JUSTICE CHANDER SHEKHAR

                                ORDER
%                               30.05.2017

Dr. S. Muralidhar, J:
1. These are three writ petitions by Avtec Limited which challenge the
notices dated 31st March, 2015 issued to it by the Respondent Deputy
Commissioner of Income Tax, Circle-1 [hereinafter referred to as the
Assessing Officer (,,AO)] under Section 148 of the Income Tax Act, 1961
and the order dated 11th January, 2016 passed by the AO disposing of the
Petitioners objections thereto.

2. The aforementioned notices were issued seeking to reopen the
assessments of the Petitioner for Assessment Years (,,AYs) 2008 -09, 2009-
10 and 2010-11.

3. The background facts are that the Petitioner is engaged in the business of
manufacturing and selling of automobiles, power trains and power shift
transmissions along with their components.


W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                   Page 2 of 12
4. The Petitioner entered into a Business Transfer Agreement (,,BTA) with
Hindustan Motors Ltd. (,,HML) on 19th February, 2005. In terms thereof the
Petitioner took over the business from HML. Expenses in the sum of Rs.
84,38,357 pertaining to professional and legal charges were paid in relation
to the taking over of the business from HML including drafting and due
diligence and other contracts reimbursed to HML and ACTIS India and
South Asia Fund by a separate agreement dated 9th February, 2005. These
expenses were considered as capital expenses and allocated to the block of
assets. Depreciation was accordingly claimed for AY 2006-07.






5. During the course of assessment for AY 2006-07 a specific query was
raised in respect of the above claim for depreciation and a reply dated 5th
December, 2008 was furnished in that regard. While completing the
assessment for AY 2006-07, the claim for the above depreciation on the
professional charges paid was disallowed by the assessment order dated 24 th
December, 2008.

6. The Assessee then took the said assessment order for the AY 2006-07 in
appeal to the Commissioner of Income Tax (Appeal) [,,CIT (A)]. After the
CIT (A) dismissed the appeal, the Petitioner went before the Income Tax
Appellate Tribunal (,,ITAT) which restored the matter to the file of the AO
for a fresh examination.

7. Although Mr. Ashok Manchanda, learned Senior Standing Counsel for the
Revenue contends that he has no instructions on what transpired before the
AO thereafter as regards AY 2006-07, Mr. Salil Kapoor, learned counsel for
the Petitioner states that the said disallowance was deleted by the AO in
W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                Page 3 of 12
view of what transpired in the later AYs.

8. As far as AY 2007-08 was concerned, the AO again disallowed
depreciation following his earlier order for AY 2006-07. However when the
matter went in appeal at the instance of the Assessee, the CIT (A) by an
order dated 6th September, 2013 (for AYs 2007-08) deleted the disallowance
by holding as under:
        " It is seen from the assessment order that the assessing officer
        has disallowed capitalization of the legal and professional
        charges by placing reliance on Article 13.4 of the Business
        Transfer Agreement according to which the seller (HML) shall
        bear all the cost and expenses (including professional fees and
        cost of advisors and counsel) in relation to this agreement. The
        Assessing officer there after refers to Section 43(1) wherein
        'actual cost' is defined and Section 43(2) where in the word
        'paid' is defined. The Assessing Officer held that since the
        liability to pay the professional and legal charges as per the
        agreement was that of the Hindustan Motors Limited therefore
        in view of the provision of section 43 these charges of
        Rs.84,38,357/- cannot be claimed by the appellant as the
        liability of the appellant.

        It is observed that the fact of incurring of legal and professional
        charges of Rs. 84,38,357/- by the appellant are not in dispute.
        These charges are essentially for effecting the takeover of the
        business units of Hindustan Motors. Since the payment is for
        perfecting the profit earning apparatus of the appellant therefore
        it is a logical corollary that the same has to form part of the
        actual cost of the acquisition of the assesse. Accordingly, the
        capitalization of such expenses is allowed on which the claim
        of depreciation is also directed to be allowed."

9. The order of the CIT (A) for 2007-08 was taken up in appeal by the
Revenue to the ITAT. After that appeal was dismissed, the Revenue

W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                     Page 4 of 12
approached this Court. However, since the monetary effect was below the
permissible limit in terms of the extant circular, the Revenue's appeal was
not entertained. In other words, the order of the CIT (A) for AY 2007-08
allowing the claim for depreciation became final.

10. The Petitioner filed its return of income for 2008-09 on 29th September,
2008. The said return was picked up for scrutiny and the assessment was
completed by the AO passing an assessment order under Section 143(3) of
the Act on 28th December, 2010 assessing the income at Rs. 23,76,81,420
against the returned income at Rs. 18,17,45,456 after making various
additions.

11. The impugned notices dated 31st March, 2015 were issued by the AO
under Section 148 of the Act seeking to reopen the proceedings for AY
2008-09, 2009-10 and 2010-11. By an order dated 18th December, 2015, a
copy of the reasons was furnished to the Petitioner. These reasons were
communicated in the prescribed proforma. In Column No. 11 under the
caption "reasons for the belief that income has escaped assessment", it was
stated as under:
        "The brief facts of the case are as follows: M/s Avtec Ltd has
        claimed depreciation of Rs.7,16,299/- on professional charges
        capitalized amounting to Rs.46,68,571/-allocated to various
        block of assets which is not allowed as per the provision of
        section 43(1) of IT Act, 1961 as not included in actual cost as
        per provision of section 43(1) and 43(2) since the article 13.4 of
        the Business Agreement dated 19.02.2005 between Hindustan
        Motor ltd. (Seller) and Avtec Ltd. (Purchaser) which read thus:

        "13.4 Expenses
        The seller shall bear all the costs and expenses (including
W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                    Page 5 of 12
        professional fees and costs of the advisors and counsel) in
        relation to this Agreement and the transactions contemplated
        herein, including in relation to all documents which are to be
        executed in accordance with the terms hereof".

        Since the seller i.e. Hindustan Motor Ltd. bore all the cost and
        expenses including professional fees therefore depreciation on
        professional charges capitalized to various blocks amounting to
        Rs.7,16,299/- is not allowed as per the provision of section
        43(1) of IT Act, 1961.

        In view of the above, I have reason to believe that due to failure
        on the part of the assessee to disclose all the material facts truly
        or fully, income of Rs.7,16,299/- have escaped assessment.

        In view of above proceedings u/s 147 is to be initiated to
        assessed the income chargeable to tax which has escaped
        assessment (total amount of Rs.7,16,299/- as discussed above
        on account of assessees failure to disclose fully or truly all
        material facts necessary for its assessments for AY 2008-09.

        Necessary sanction of issue of notice u/s148 may kindly be
        granted."

12. Identical reasons were furnished for AYs 2009-10 and 2010-11. As
already noted the Petitioners objection to the reopening w as disposed of by
the AO by the impugned orders dated 11th January, 2016 which has also
been challenged. A notice under Section 142(1) of the Act was issued on the
same date.

13. Writ Petition (C) Nos. 519, 522 and 761 of 2016 were filed by the
Petitioner challenging the three notices dated 31st March, 2015 and the
orders dated 11th January 2016 of the AO disposing of the Petitioner's
objections. The writ petitions were heard on 1st February, 2016. The Court

W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                      Page 6 of 12
stayed further proceedings pursuant to the aforementioned notices dated 31 st
March, 2015 and orders dated 11th January, 2016. The interim orders have
continued since.

14. Mr. Salil Kapoor, learned counsel for the Petitioner submitted that the
reopening of the assessment was bad in law as it failed to satisfy the
jurisdictional requirements under the proviso to Section 147 of the Act for
two of the AYs i.e., AY 2008-09 and 2009-10. As far as the reopening of the
assessments for the said two AYs, it was incumbent on the Revenue to
demonstrate that there was a failure on the part of the Petitioner in making a
full and true disclosure of all material facts. He submitted that in fact there
was no failure at all on the part of the Assesse to disclose fully and truly all
material facts. From AY 2006-07 onwards, the Revenue was aware of the
claim for depreciation made by allocating the aforementioned expenses to
the block of assets and treating them as capital expenses and claiming
depreciation thereon.

15. Mr Kapoor further pointed out that in the subsequent years i.e., AYs
2011-12 and 2012-13 the same claim for depreciation has already been
allowed. He submitted that there had to be fresh material to justify the
reopening of the assessment. In the present case, he submitted that the
reopening was based on a mere change of opinion on the same material that
was already available with the Revenue. Even for AY 2010-11, there was no
basis for forming reasons to believe that income had escaped assessment.
Inter alia he placed reliance on the decision of the Full Bench of this Court
in Commissioner of Income tax v. Kelvinator of India Ltd. [2002] 123

W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                    Page 7 of 12
taxman 433 (Del) (FB) and the consequential judgment of the Supreme
Court in Commissioner of Income tax, Delhi v. Kelvinator of India Ltd.
[2010] 187 taxman 312 (SC). Reliance was also placed on the decisions of
this Court in Mohan Gupta (HUF) v. Commissioner of Income Tax [2014]
366 ITR 115 (Del) and Commissioner of Income tax v. Orient Craft Ltd.
[2013] 354 ITR 536 (Del) which was affirmed by the Supreme Court by the
dismissal of the Special Leave Petition filed by the Revenue on 20 th January,
2014.

16. In reply, Mr. Ashok Manchanda, learned counsel for the Revenue,
submitted that although the Petitioner may have disclosed the BTA and the
fact of claiming depreciation by allocating the professional legal charges etc.
as capital expenses to the block of assets for claiming depreciation thereon
for AY 2006-07 and 2007-08, no such disclosure was made at the time of
assessment for the AYs 2008-09, 2009-10 and 2010-11. According to him,
in none of the three AYs did the Petitioner mention in its return filed or
during the assessment that this was a disputed claim and was disallowed by
the AO for AYs 2006-07 and 2007-08. In the assessment orders for these
three AYs, therefore, there is no discussion in relation to this issue. It
inadvertently escaped the attention of the AO. Having already made similar
additions for the earlier two AYs 2006-07 and 2007-08 there was no reason
for the AO to not disallow the depreciation on the above basis in the AYs in
question.

17. Mr. Manchanda submitted that it was the Assessee's mentioning before
the ITAT during the hearing of the appeal for AY 2007-08 that there were

W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                   Page 8 of 12
no additions made on this issue that became the fresh source of information
for the Department. He submitted that the Petitioner had failed to mention in
the ,,Schedule of Depreciation that the costs/written down value of certain
assets included such amounts which were not of capital nature or their
admissibility was otherwise disputed. Had there been such a mention by the
Petitioner, it would not have escaped the notice of the AO.






18. Mr. Manchanda stated that he was not aware whether in AYs 2011-12
and 2012-13 the claim for depreciation had been allowed. In any event
according to him the rule of consistency required the AO to follow what was
done for AYs 2006-07 and 2007-08. On merits he submitted that there was
no question of allowing such a claim for depreciation in terms of Section
35D of the Act which placed restrictions. Expenses like professional legal
charges and contract drafting charges etc. could not be capitalised with
capital assets like plant and machinery and this was not eligible for
depreciation.

19. In the present case, the Court finds that the reasons for reopening the
assessment for AYs 2008-09 and 2009-10 proceeded on the basis that the
Assesse had failed to make a full and true disclosure of material facts
concerning the claim for depreciation. This cannot be accepted for the
simple reason that there was a history of litigation around such claim
beginning in AY 2006-07. The mere fact that the incumbent AO dealing
with the returns of the Assesse was different from the AO who dealt with
there for the AYs 2006-07 and 2007-08 will not excuse the AO from
examining the history of the case.

W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                   Page 9 of 12
20. On its part, it was not necessary for the Assessee to enclose a copy of the
BTA every year and explain the basis for the claim of depreciation. In any
event, the assessments for AYs 2008-09 and 2009-10 were completed under
Section 143 (3). There was no fresh material to disclose. On this aspect,
there was no change in the circumstances. Therefore, there was no failure by
the Assessee to make a full and true disclosure of all material facts relevant
to the assessment.

21. Mr. Manchanda sought to emphasize that each AY was different and,
therefore, the AO was not obliged to look into the previous records. The
Court is unable to agree with this approach of the AO. If the AO was
seeking to invoke Section 148 of the Act for AYs 2008-09 to 2010-11 it was
incumbent on him to ascertain the status of the identical claim in the earlier
AYs. After all he was seeking to reopen an assessment only on the aspect of
the claim of depreciation. On this very aspect the Revenue had for AY 2006-
07 taken the matter up to the ITAT and the matter had been remanded to the
AO. For AY 2007-08, the CIT (A)'s order allowing the claim had attained
finality. These facts could not have escaped the attention of the AO. In any
event, there was no fresh material that the AO came across to warrant
reopening of the assessments for AYs 2008-09 and 2009-10. The plea that
the AO inadvertently allowed the claim for depreciation for AYs 2008-09,
2009-10 and 2010-11 cannot in the circumstances be accepted.

22. The Supreme Court in Commissioner of Income tax v. Kelvinator of
India Ltd. (supra) while affirming the decision of the full Bench of this
Court on the interpretation of Section 147 of the Act observed thus:
W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                   Page 10 of 12
        "...However, one needs to give a schematic interpretation to the
        words "reason to believe" failing which, we are afraid, Section
        147 would give arbitrary powers to the Assessing Officer to re-
        open assessments on the basis of "mere change of opinion",
        which cannot be per se reason to re-open. We must also keep in
        mind the conceptual difference between power to review and
        power to re-assess. The Assessing Officer has no power to
        review he has the power to re-assess. Bur re-assessment has to
        be based on fulfilment of certain pre-condition and if the
        concept of "change of opinion" is re-opening the assessment,
        review would take place. One must treat the concept of "change
        of opinion" as an in ­built test to check abuse of power by the
        Assessing Officer. Hence, after 1st April, 1989, Assessing
        Officer has power to re-open, provided there is "tangible
        material" to come to the conclusion that there is escapement of
        income from assessment. Reasons must have a live link with
        the formation of the belief..."

23. In the present case, the tangible material that the AO came across for the
AYs in question that warranted the reopening of the assessments is not clear
from the 'reasons to believe' recorded by the AO. The reasons merely record
the fact that HML had borne the costs and expenses including professional
fee and, therefore, the capitalisation of those expenses to the various block
of assets was not allowable under Section 43(1) of the Act. After recording
the above statement, the AO adds: "I have reason to believe that due to
failure on the part of the assesse to disclose all the material facts truly or
fully, income of Rs.7,16,299 have escaped assessment." This does not
satisfy the requirement of law that the reasons to believe should, where the
reopening is after the expiry of four years from the end of the FY,
specifically state in what manner there was a failure by the Assessee to make
a full and true disclosure of material facts. That, again, will have to be
preceded by spelling out the tangible fresh material that led the AO to come
W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                  Page 11 of 12
to that conclusion. None of this is found in the reasons to believe recorded
by the AO in the case on hand. The necessity for tangible material to be
present to trigger the reopening was emphasised in Commissioner of
Income tax v. Orient Craft Ltd. (supra).

24. The repeated assertion by Mr. Manchanda that the claim for depreciation
for AYs 2006-07 and 2007-08 was disallowed by the AO is not entirely
correct. It overlooks the history of the litigation around the claims for those
AYs with both ending in the Assessee ultimately succeeding on the point
after the remand to the AO by the ITAT for AY 2006-07 and the level of the
CIT (A) for AY 2007-08 . Mr. Manchanda has also not been able to counter
the submission that for AYs 2011-12 and 2012-13 the same claim for
depreciation has been allowed.

25. For all of the aforementioned reasons, the writ petitions are allowed and
the notices dated 31st March, 2015 and the consequential orders dated 11th
January, 2016 passed by the AO disposing of the Petitioners objections are
hereby set aside. No order as to costs.



                                                      S. MURALIDHAR, J



                                                CHANDER SHEKHAR, J
MAY 30, 2017
dn




W.P. (C) Nos. 519/2016, 522/2016 & 761/2016                   Page 12 of 12

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