2010 (4) TMI 1114

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....ax passed u/s.263 of the IT Act, 1961. In respect of these two appeals, the relevant grounds by the assessee, are as follows: i) That the learned Commissioner of Income-tax erred in holding that the assessment order under section 143(3) of the Income tax Act, 1961 dated March 3, 2005 and the order giving effect to the order of the Hon'ble Commissioner of Income-tax (A), dated January 11, 2006 were erroneous and prejudicial to the interests of the revenue within the meaning of section 263 of the Act, and directing afresh assessment. ii) That the learned Commissioner of Income-tax(A) failed to appreciate that none of the preconditions for invoking of power under section 263 of the Act were present in the appellant's ....

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.... Income-tax was not justified to invoke his jurisdiction available u/s.263. In this regard, we may extract the relevant portion from the revision order passed by the Commissioner of Income-tax: "There is also no merit in the contention of the assessee that the matter proposed to be revised has already been decided in appeal. There is no dispute here regarding the legal provisions, which clearly expound that matters decided in appeal cannot be the subject matter of revision u/s.263. But the fact remains that the proposal for revision does not cover matters already decided in appeal, in view of the following reasons. While completing the assessment, on 3.3.2005, the Assessing Officer did not allow the set off of unabsorbed depreciation ....

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....udicate this point. What the Commissioner of Income-tax(A) adjudicated was as to which year constitutes the relevant assessment year for the purpose of section 10A(6). Thus the Commissioner of Income-tax(A) did not adjudicate the issue involved in the proposal u/s.263 of the IT Act i.e., whether unabsorbed depreciation should be allowed to be set off against business income before allowing deduction/exemption u/s. 10A of the I.T. Act. Assuming but not accepting that the learned Commissioner of Income-tax(A) has adjudicated on the above issue involved in the proposal u/s.263 of the IT Act, it can be said that while giving effect to the order of the Commissioner of Income-tax(A), the Assessing Officer in his above referred order dated 11.1....