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TMI Blog2010 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... DR. D. Y. CHANDRACHUD J.— Admit. 2. The appeal arises out of an order passed by the Income-tax Appellate Tribunal on February 27, 2009, pertaining to the assessment year 2003-04. By the order of the Tribunal, proceedings initiated 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? ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the Highway infrastructure by the Union Government; (ii) There was a lack of application of mind on the part of the Assessing Officer who had passed the assessment order, to this issue; (iii) The assessment order was mainly based on 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax for exercising the jurisdiction under section 263. As already noted earlier, the Commissioner of Income-tax, in the exercise of his jurisdiction under section 263 observed that the assessee is not a developer within the meaning of section 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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