N.P.GUPTA, J. - (1.) THIS appeal has been filed by the Revenue against the judgment of the learned Tribunal dt. 24th Sept., 2004.
(2.) THE appeal was admitted vide order dt. 9th March, 2006, by, framing the following substantial questions of law: 1. Whether in the facts and circumstances of the case when for asst. yr. 1991 -92 the original assessment was made under Section 143(1)(a), could resort to proceedings under Section 147 be termed as based on mere change of opinion. 2. Whether the resort to Section 147 could be taken if the AO fails to make resort to regular assessment under Section 143 within the time permitted after assessment was made under Section 143(1)(a). The necessary facts are, that the present assessee filed a return on 12th July, 1991, which was processed under Section 143(1)(a) on 27th Sept., 1991, and a refund of Rs. 515 was issued to the assessee. Subsequently on 26th March, 1997, a notice under Section 148 was issued, as the AO was of the opinion, that there was under -assessment of income, inasmuch as the depreciation claimed by the assessee on tractor, which are agricultural implement, and was allowed to the assessee, whereas it is agricultural implement, and any deduction whatsoever, if any admissible, is admissible against the agricultural income. In response to this notice a return was filed, and the learned AO made best judgment vide order dt. 22nd Dec, 1998, and held, that the assessee has claimed depreciation on two tractors owned by her on the ground that she has income from tractor hiring while there is no evidence that the tractor was ever plied for commercial purposes, and that the tractor is an agricultural machinery, and the assessee having utilised the same for agricultural purposes, she is not entitled to depreciation against the other business income of the assessee. Consequently claim of depreciation was held to be inadmissible, and was disallowed.
(3.) AGAINST this order, appeal was filed before the CIT(A) by the assessee, and the learned CIT(A) in para 5.2 has found as under: The AO had briefly discussed the reasons for initiating proceedings under Section 148 in the assessment order. It has been mentioned by him that a notice under Section 148 was issued on 26th March, 1997, as he had found that there was under -assessment of income as much as depreciation on tractors, which are agricultural implement, was claimed and allowed to the appellant whereas any deduction whatsoever if admissible, is admissible against agricultural income.;