The Commissioner of Income Tax, vs. M/s. Usha KKiran Movies Limited,

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR

INCOME TAX APPELALTE TRIBUNAL APPEAL NOs.31 OF 2007 AND 60 OF 2010

DATED:6.2.2014

Between:

The Commissioner of Income Tax Hyderabad-I … Appellant

And

M/s. Usha Kiran Movies Limited Eenadu Compound Somajiguda Hyderabad … Respondent

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR

I.T.T.A. NOs.31 OF 2007 AND 60 OF 2010

COMMON JUDGMENT: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)

I.T.T.A. NO.60 OF 2010

This appeal was admitted for hearing without formulating substantial question of law as required to be done under Section 260- A of the Income Tax Act. After hearing the learned counsel for the parties, we are of the view, we would have formulated such questions had we decided the matter in favour of the appellant. However, on perusal of the impugned judgment we noticed that even this case is not fit for admission and the reasons for the aforesaid conclusion of ours are as follows: The short fact of the case is that the assessee respondent has filed a return for the assessment year 1995-96 showing nil income explaining that there has been no income after commencement of the business. The assessee started development of certain area for making it suitable for development of infrastructure for shooting locations. While doing so, there has been some rental income which was directly inter-linked with the above activity. Explaining all these details, the return was filed and the Assessing Officer has accepted such return. Therefore, we quote the relevant portion of the order of the Assessing Officer: “For the relevant previous year, the assessee was engaged in developing the Film project under the name and style of ‘Ramoji Film City’ at Anajpur, near Hyderabad. The business had not yet started.

The assessee filed ‘NIL’ return of income on 30-11-1995. Notice U/s.143(2) was issued. The case was represented by Shri G. Sambasiva Rao, CA. After examining the details, the income returned is ‘accepted’.”

The Revenue did not prefer any appeal against this order. However, the Commissioner of Income Tax, in exercise of jurisdiction under Section 263 of the Income Tax Act, had reversed the aforesaid order and directed that the aforesaid income would not have been capitalized and it should have been brought to tax under the head ‘income from other sources’.

Being aggrieved by the aforesaid order of the revisional authority, an appeal has been preferred before the Tribunal. The learned Tribunal on fact found that the income derived by the assessee herein was at the stage of development activities. In other words, the income derived was having close and direct link with the development activities. That fact finding of the learned Tribunal is as follows:

“On a conspectus of the matter, we are of the view that the income earned by the assessee was in the process of development of the project and therefore the factual matrix lend support to the claim of the assessee that the decision in the case of Bokaro Steels Ltd. (supra) is applicable to this case…

…As could be seen from the reply given to the show cause notice, the assessee categorically stated that the lease rentals were earned from the land which are developed for creating film shooting facilities/locations and it is directly connected with the main activity of the assessee, i.e., development of infrastructure for shooting locations. Learned CIT has not controverted the submissions of the assessee but merely stated in the order that unutilized land was utilized by the other group companies. In other words, the findings of the CIT were not based on correct appreciation of facts.”

In view of the aforesaid fact finding, which has not been said to be perverse by the appellant, it is difficult to decide otherwise. Therefore, it has to be held that the income derived by the assessee is in the nature of capital one as it was connected with main activity. Accordingly, we think that this cannot be said to be income, as rightly

held on fact finding by the Assessing Officer initially and thereafter by the Tribunal. We noticed that the learned Tribunal has taken a correct view of the matter as the Commissioner of Income Tax has no jurisdiction to reopen this case, because one of the two possible views was taken by the Assessing Officer and such change of view cannot be any ground to reopen the issue under Section 263 of the Income Tax Act. Therefore, the Commissioner of Income Tax had passed the order in total illegal exercise of jurisdiction and the learned Tribunal has correctly upset the same. Accordingly, we do not find any merit in this appeal and the same is accordingly dismissed. There will be no order as to costs. I.T.T.A. NO.31 OF 2007 Since the issue raised in this appeal is similar to the one raised in the above appeal (ITTA No.60 of 2010) and the parties are same, present appeal is also dismissed in terms of the above said judgment. There will be no order as to costs.

________________________ K.J. SENGUPTA, CJ

_______________________ SANJAY KUMAR, J 6.2.2014

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Note: L.R. Copy to be marked. (B.O) bnr