Reopening under section 147 by the AO on the same set of facts, without there being any additional information, can only be considered as change of opinion

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7. As can be seen from the above the adjustment made by the assessee is according to the provisions of the Act. Since both the industrial galas fall within the block the WDV is increased by the actual cost of the asset falling within the block and reduced by the amount payable in respect of the asset sold. Accordingly we do not find any mistake in assessee’s working of the block of assets which is according to the provisions of section 43(6)(c).

The A.O.’s action in denying the inclusion of asset within the block is on the condition that the asset was not put to use. This condition was already negated by the ITAT in the above referred decision while considering the provisions of section 50 where in it was held as under: –

“Section 50 makes special provision for the computation of capital gains in the case of depreciable assets. The effect, in brief, of the section is to make certain modifications in the deductions to be allowed under section 48 and 49 from the consideration received as a result of the transfer. Thus, in the case of depreciable assets, instead of the deductions allowed by sections 48 and 49, the deductions permitted under section 50(l)(i), (ii) and (Hi) would be allowable. The section also says that even though the particular depreciable asset has been held by the assessee for more than 36 months, still the capital gains would be considered and dealt with as short-term capital gains only and not as long term capital gains. That is the effect of the non obstante clause which rules out the applicability of section 2(42A). Though some modifications or changes have been made in the computation of the capital gains or transfer of depreciable assets, the nature and content of the subject matter of taxation remains the same, viz., capital gains. The rules relating to the computation of business income are not incorporated or worked into the rules relating to the computation of capital gains.

Therefore while examining the applicability of the provisions of section 50, the Tribunal is not to be influenced by the rules relating to the computation of the business income.

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