1 itxa4244-10 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4244 OF 2010 The Commissioner of Income Tax – 11, Mumbai ..Appellant. Versus M/s.Nimbus Communications Limited ..Respondent. Mr.D.K. Kamwal for the appellant. Mr.S.C. Tiwari with Ms.Natasha Mangat for the respondent. CORAM : J.P. Devadhar & A.R. Joshi, JJ. DATE : 8th December 2011 P.C. : 1. Whether the Income Tax Appellate Tribunal was justified in holding that the expenditure on share issue incurred by the assessee is a revenue expenditure and, hence, allowable under Section 37 of the Income Tax Act, 1961 is the question raised in this appeal. 2. The finding of fact recorded by the Income Tax Appellate Tribunal is that there is dispute that the assessee has in fact incurred the expenditure and that on account of the aborted public issue offer, no new asset has come into existence and consequently there is no question of the assessee getting any enduring benefit. With the approval of SEBI, the 2 itxa4244-10 assessee was to increase the share capital and thereby promote its business activity. However, the same got aborted due to reasons beyond its control. In these circumstances, in view of the decision of this Court in the case of Commissioner of Income Tax V/s. M/s.Essar Oil Limited, Income Tax Appeal (L) No.921 of 2006 decided on 16th October 2008, in our opinion, no fault can be found with the decision of the Income Tax Appellate Tribunal in allowing the aborted share issue expenditure under Section 37 of the Income Tax Act, 1961. 3. Accordingly, the appeal is dismissed with no order as to costs. (A.R. Joshi, J.) (J.P. Devadhar, J.)