2010 (2) TMI 104

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961, have been set aside. 3. The Revenue has formulated the following questions of law in an appeal under section 260A: "(a) Whether, on the facts and circumstances of the case and in law, the Income-tax Appellate Tribunal is correct in setting aside the order passed under section 263 by the Commissioner of Income-tax, without discussing the facts of the case and the clauses of the agreement between NHAI and the assessee? (b) Whether, on the facts and circumstances of the case and in law, the Income-tax Appellate Tribunal is correct in ignoring the relevant facts and findings in the order under appeal? (c) Whether, on the facts and circumstances of the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n the decision of the Mumbai Bench of the Appellate Tribunal in Patel Engineering Ltd. v. Deputy CIT [2005] 94 ITD 411 (Mumbai). However, the decision in Patel Engineering was distinguishable on facts; (iv) In any event, the retrospective amendment to section 80-IA(4) by Finance Act of 2007 would lead to the conclusion that the order passed by the Assessing Officer was erroneous. The Commissioner of Income-tax has adverted to the provisions of section 263 and after relying upon the judgment of the Supreme Court in CIT v. Shree Manjunatheshware Packing Products and Camphor Works [1998] 231 1TR 53 held that the record would include the Explanation to section 80-IA. 5. The order of the Commissioner of Income-tax was the subject-matter of an....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ection 80-IA; that the decision in Patel Engineering is distinguishable on facts and that in any event, the Explanation to section 80-IA inserted by the Finance Act of 2007 would demonstrate that the order of the Assessing Officer is erroneous. Neither of these three reasons, which form the basis of the order of the Commissioner of Income-tax have been dealt with by the Tribunal. In fact, as noted earlier, the Tribunal in paragraph 3 of its decision proceeded on the basis that the revisional jurisdiction had been exercised by the Commissioner of Income-tax only on the basis of the Explanation inserted into section 80-IA(13) by the Finance Act of 2007. That ex facie is not a correct reading of the order passed by the Commissioner of income-t....