Itxa-1410.Sxw v. Itxa-1410.Sxw

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.1410 OF 2012 The Commissioner of Income Tax-1. v.Dana India Tech. Centre Pvt. Ltd. ..Appellant. ..Respondent. Mr.Vimal Gupta with Ms. Padma Diwakar for the Appellant.None for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 15TH JANUARY, 2013 PC: The revenue has formulated the following question of law for consideration by this court. Whether on the facts and in the circumstances of the case and in law the Tribunal was correct in holding that the CIT was not justified in assuming jurisdiction u/s. 263 of the Income Tax Act? 2)For assessment year 2006-07 the Assessing Officer passed an order on 8/12/2008 under Section 143(3) of the Income Tax Act, 1961 (the Act) determining the income of the respondent assessee as Nil. In the assessment proceedings deduction under section 10A of the Act was granted to the extent of Rs.3.57 crores. 3)The Commissioner of Income Tax reviewed the order under Section 263 of the Act as he was of the opinion that deduction under Section 10A of the Act was not correct as an amount of Rs.93.88 lacs of export proceeds in foreign exchange had not been remitted into India within the stipulated period. Thus, Commissioner of Income Tax set aside the original order dated 8/12/2008 and remitted the matter to the Assessing Officer to examine the issue after having recorded the fact that foreign exchange remittance was received by the assessee on 17/3/2008. 4)In appeal, the Tribunal by its order dated 18/6/2012 held that exercise of jurisdiction by the Commissioner under Section 263 of the Act was not warranted as the Assessing Officer has allowed the deduction on the basis of the Auditor's report as well as various documents furnished to it. Therefore, it was a possible view and could not be termed as erroneous for the purpose of exercise of jurisdiction under Section 263 of the Act. The Tribunal held that the view of the Assessing officer was a possible view as justified by its own decision in the matter of Morgan Stanlery Advantages Services Pvt. Ltd. vs. ITO reported in 30 SCT 1 in which foreign exchange proceeds were realized beyond the stipulated time and the benefit under Section 10A of the Act was extended. In view of the fact the assessee therein had sought extension of time for realization of export proceedings from RBI just as in this case. The decision of the Tribunal in the matter of Morgan Stanley (supra) was challenged by the revenue before this Court. By an order dated 30/8/2011, this Court while dismissing the appeal of the revenue held that where export proceeds having not been received by the assessee within six months from the end of the assessment year 2004-05 and the assessee had submitted an application to the Reserve Bank of India seeking extension of time then in such an case the benefit under Section 10A of the Act was ASN available. In the respondent's case also extension of time for the receipt of foreign exchange had been sought from Reserve Bank of India. Thus, on merits also the respondent is entitled to deduction under Section 10A of the Act. 5)In view of the above, we see no reason to entertain the proposed question of law. Accordingly, the appeal is dismissed with no order as to costs. (M.S.SANKELCHA, J.) (J.P. DEVADHAR, J.)