TMI Blog2010 (4) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case. iii) That the findings of the learned Commissioner of Income-tax in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtract 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 relating to asst. years 93-94 and 94-95 against the business income of the assessment year 2001-02 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes 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 11.1.06 did not allow set off of unabsorbed depreciation of asst. year 93-94 and 94-95, before allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0A deduction is outside the jurisdiction of the Commissioner of Income-tax u/s.263. The only course available before the Revenue was to file appeals before the ITAT. For this short reason, we cancel the revision orders passed by the Commissioner of Income-tax for the assessment years 2001-02 and 2002-03. 6. As far as the appeal for assessment year 2003-04 is concerned, the appeal is liable to be dismissed for the reason that ITAT, Bangalore Bench has already held against the assessee on subject matter in their decision in the case of M/s. Intellinet Technologies India Ltd., vs. ITO, dated 12.3.2010, passed in ITA. 1021/Bang/2009. The Tribunal has held that the decision of the jurisdiction High Court in the case of CIT v. Himatasingike Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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