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TMI Blog2014 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ls project the same grievance as dealt with earlier. 3. In the case of the present Assessee, in ITA/2066/Mum/2009 relating to the Assessment Year 20042005 the Income Tax Appellate Tribunal made the first order. The ITAT allowed the Assessee's appeal on 22.03.2010. In allowing that Appeal, the Tribunal set aside the order dated 02.03.2009 of the Commissioner of Income Tax11, Mumbai passed under Section 263 of the Income Tax Act, 1961. The Commissioner of Income Tax11 had set aside the Assessment Order for the Assessment Year 2004-2005 passed under Section 143(3) of the Income Tax Act, 1961 dated 20.10.2006. This Tribunal Order has been followed and applied in the case of the very Assessee for the Assessment Year 2004-2005 and by the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even otherwise, Section 50 was not applicable and that was the stand throughout of the Assessee. 5. It is this stand of the Assessee which has been accepted by the Tribunal in both orders impugned before us. 6. Taking assistance of Section 50 of the Income Tax Act, 1961, Mr.Chhotaray would urge that these Appeals raise a substantial question of law because there is nothing in law by which assistance the Assessee could have surrendered the depreciation. The law does not recognize any such concept, therefore, jurisdiction under Section 263 was rightly exercised. Even on merits, the stand of the Assessee that Section 50 was not applicable has been erroneously accepted. These are fundamental issues. Therefore, these Appeals raise a substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to the undisputed facts that the Assessing Officer right upto the Assessment Year 2000-2001 allowed the depreciation. However, in the Assessment Year 2001-2002, the entire amount was taken as income and disclosed and offered for taxation. That is how the Assessing Officer accepted this course. It is in these circumstances that the ITAT arrived at a conclusion that the view taken was possible and probable in the given facts and circumstances of the case. It, therefore, allowed the Assessee's appeals. The powers under Section 263, therefore, could not have been invoked, is the conclusion reached coupled with merits. 8. We are of the view that in the facts and circumstances peculiar to the Assessee's case and when the land has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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