Ita/66/2010 Of Commissioner Of Income Tax, Kolkata-Ii, Kolkata v. M/S. Usha Martin Ventures Ltd

O - 86 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE ITAT/66/2010 COMMISSIONER OF INCOME TAX, KOLKATA– II, KOLKATA -Versus-M/S. USHA MARTIN VENTURES LTD. Appearance:Mr. Amit Sharma, Adv....for the appellant. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 17[th] February, 2023 The Court : This appeal by the revenue under Section 260A of the Income Tax Act (the ‘Act’ in brevity) is directedagainst the order dated 30[th] September, 2009 passed by the IncomeTax Appellate Tribunal, A - Bench, Kolkata (the ‘Tribunal’) in ITANo.576/Kol/2009 for the assessment year 2002-03. This appeal was admitted on 22[nd] April, 2010 for the following substantial question of law: “Whether on the facts and in the circumstances of thecase the Income Tax Appellate Tribunal substantiallyerred in law on holding that the Commissioner of IncomeTax could not invoke the provisions of Section 263 inrespect of the capital expenditure of Rs.1,60,75,000/-?” We have heard Mr. Amit Sharma, learned counsel for theappellant/revenue. The short issue involved in the instant case is whether theCommissioner of Income Tax (Appeals) [CIT(A)] could have assumedjurisdiction under Section 263 of the Act on an issue which wasnever the subject-matter of the assessment in a proceedinginitiated under Section 147 of the Act. On facts, the learnedTribunal found that the issue of loss/expenditure incurred inrespect of newly undertaken software product development projectas capital loss/expenditure was not touched by the assessingofficer in the reassessment proceedings under Section 147 of theAct. Therefore, the learned Tribunal found that the CIT(A) was notjustified in invoking the provisions of Section 263 of the Act onan issue which was not the subject-matter of the reassessment ofthe proceedings. The decision rendered by the Tribunal takes noteof the correct legal position and, therefore, does not call forany interference. Hence, The appeal filed by the revenue standsdismissed and the substantial question of law is answered againstthe revenue. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Das/S. ChandraAR