Commissioner of Income Tax, Bangalore and Others vs Motorola India Private Ltd.

N.K. Patil, J.—1. This appeal by the Revenue is arising out of the impugned order dated 12/05/2010, passed in ITA No. 572/BNG/2009, by the Income Tax Appellate Tribunal, Bangalore Bench-B, Bangalore, for considering the following substantial questions of law:

(a) Whether on facts and in the circumstances of the case, the tribunal is correct in law in coming to the conclusion that the Commissioner of Income Tax cannot exercise jurisdiction under Section 263 as the assessing authority, after appreciation of facts and the legal proposition, had adopted one of the possible views on the issue of computation of deduction under section 10A/10B which was the subject matter of revision, without appreciating the facts that the assessing authority did not examine the relevant facts to form an opinion on the issue of exclusion of consultancy charges incurred in foreign currency from export turnover consciously by application of mind?

(b) Whether on facts and in the circumstances of the case, the tribunal is justified in law in canceling the order under Section 263 on the ground that the order revised is not erroneous in view of certain Tribunal orders then existing on an issue which have been contested in further appeal by the department before the Hon''ble High Court?

(c) Whether on the facts and circumstances of the case, the tribunal was right in law in allowing assessee''s appeal even though the Commissioner of Income Tax was right in law in directing the assessing authority to compute deductions under section 10A and 10B of the Act by excluding the expenses fro export turnover incurred in foreign currency and as same was according to said provisions?

(d) Whether on the facts and circumstances of the case, the tribunal was right in law in holding that the it is not necessary to exclude expenses incurred in foreign currency to compute deduction under section 10A and 10B of the Act, when the same is against to the provisions of the Act?

(e) Whether on the facts and circumstances of the case, the tribunal''s order can be said to be perverse in nature since tribunal has failed to uphold the order of Commissioner even when the directions issued by Commissioner to assessing authority to exclude expenses incurred in foreign currency to compute deduction under section 10A and 10B of the Act was according to the provisions of the Act?"

We have heard the learned counsel Sri. Jeevan, J. Neeralgi for Revenue and learned counsel Sri. Ashok, A. Kulkarni for M/s. K.R. Prasad appearing for the respondent for some time.

During the course of submission, learned counsel appearing for respondent submitted that, the subject matter involved in this case is directly covered by the judgment passed by the Division Bench of this Court dated 1st August 2014 in ITA No. 1075/2008 C/W I.T.A. No. 196/2009 (The Commissioner of Income Tax and another Vs. M/s. Mphasis Limited, Bangalore). Therefore, he submitted that following the said judgment and for the reasons stated therein, this appeal may also be disposed of answering the substantial questions of law in favour of the assessee and against the Revenue.

Learned counsel appearing for the Revenue has not disputed the said fact after going through the said judgment.

The above submission made by learned counsel for both the parties is placed on record.

In the light of the submission made by learned counsel appearing for both the parties and following the judgment dated 1st August 2014 in ITA No. 1075/2008 C/W. I.T.A. No. 196/2009 (The Commissioner of Income Tax and another Vs. M/s. Mphasis Limited, Bangalore), and for the reasons stated therein, this appeal filed by the Revenue stands disposed of answering the substantial questions of law raised in favour of the assessee and against the Revenue. Ordered accordingly.