2012 (3) TMI 127 - AT - Income Tax

Conditions for Invoking order by Commissioner under Sec 263 - AO enquired for allowability of deduction u/s 80HHF in respect of interest income treated as business income and non-exclusion of expenses incurred in foreign currency under Explanation (c) and (j) below to Section 80HHF - Assessee gave detailed Explanation by writing letter - Held That - AO on being satisfied allowed claim of assesee. The order of the AO could not be considered to be erroneous simply because two views are possible and the AO has taken as one view with which the ld. CIT does not agree, which cannot be treated as erroneous and prejudicial to the interests of the Revenue unless the view taken by the AO is found to be unsustainable in law.

Issues Involved:
1. Validity of the order passed by the CIT under section 263 regarding deduction under section 80HHF.
2. Non-exclusion of foreign currency expenses under Explanation (c) and (j) below section 80HHF.
3. Disallowance under section 14A and applicability of Rule 8D of the Income Tax Rules.
4. Treatment of interest income as business income for the purpose of deduction under section 80HHF.

Detailed Analysis:

1. Validity of the Order Passed by the CIT under Section 263 Regarding Deduction under Section 80HHF:
The assessee challenged the CIT's order under section 263, arguing that the Assessing Officer (AO) had duly considered the issues of deduction under section 80HHF, interest income, and disallowance under section 14A during the assessment. The AO had issued a detailed questionnaire and passed a comprehensive order. The CIT's invocation of section 263 was deemed unjustified because the AO's order was neither erroneous nor prejudicial to the interests of the Revenue. The Tribunal upheld this view, stating that the AO's decision to treat the interest income as business income was permissible in law and supported by the assessee's explanations.

2. Non-Exclusion of Foreign Currency Expenses Under Explanation (c) and (j) Below Section 80HHF:
The CIT directed the AO to reconsider the exclusion of foreign currency expenses from the total and export turnover while computing the deduction under section 80HHF. The Tribunal noted that the AO, in a subsequent order, had already excluded these expenses based on the CIT's direction. However, the CIT(A) later deleted this disallowance, and the Revenue did not contest this in their appeal. Consequently, the Tribunal found no merit in the CIT's order under section 263 on this issue and canceled it.

3. Disallowance Under Section 14A and Applicability of Rule 8D of the Income Tax Rules:
The CIT had directed the AO to apply Rule 8D of the Income Tax Rules for disallowance under section 14A, based on the Special Bench decision in Daga Capital Management (P) Ltd. However, the Tribunal pointed out that the Hon'ble Jurisdictional High Court in Godrej & Boyce Mfg. Co. Ltd. had ruled that Rule 8D is applicable only from the assessment year 2008-09. Since the assessment year in question was 2004-05, the Tribunal held that the CIT's direction was not sustainable in law and canceled the order.

4. Treatment of Interest Income as Business Income for the Purpose of Deduction Under Section 80HHF:
The Tribunal referenced its earlier decision in the assessee's own case, where it had held that the interest income was rightly considered as business income by the AO. This view was supported by the Hon'ble Jurisdictional High Court. The Tribunal reiterated that the AO's treatment of interest income as business income was justified and not erroneous.

Conclusion:
The Tribunal concluded that the CIT's order under section 263 was outside the purview of the section and canceled it. The grounds taken by the assessee were allowed, and the Revenue's appeal was dismissed. The Tribunal emphasized that the AO's original order was neither erroneous nor prejudicial to the interests of the Revenue, as it was based on permissible legal views and supported by detailed inquiries and explanations.

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