COMMISSIONER OF INCOME TAX vs. M/S MOTOROLA INDIA PRIVATE LTD

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF JANUARY, 2016

:PRESENT: THE HON’BLE MR.JUSTICE N.K. PATIL

AND

THE HON’BLE MRS.JUSTICE S. SUJATHA

I.T.A.NO. 370 OF 2010 Between:

And :

M/s. Motorola India Private Ltd., (formerly M/s. Motorola India Electronics Pvt. Ltd) No.66/1, Plot No.5, Bagamane Technological Park, C.V. Raman Nagar, Bangalore.

…Respondent

(By Sri. Ashok.A. Kulkarni, for M/s. K.R. Prasad) *** This ITA is filed U/s. 260A of the Income Tax Act, 1961, praying to formulate the substantial question of law, allow the appeal and set aside the orders passed by the Income Tax Appellate Tribunal, Bangalore, in ITA No.

572/BNG/2009, dated 12/05/2010 and confirm the order of the Appellate Commissioner confirming the order passed by the Assistant Commissioner of Income Tax, Belgaum, Range-12(1), Bangalore.

This ITA coming on for Hearing, this day, N.K.PATIL J., delivered the following: :J U D G M E N T:

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 foreing 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?”

Sd/- JUDGE

Sd/-

JUDGE tsn*