2012 (6) TMI 450 - AT - Income Tax

Validity of revisionary order passed by CIT u/s 263 - order passed u/s 143(3) revised on ground that expenses incurred in foreign currency for rendering technical services outside India, were not deducted from the export turnover, resulting in excess allowance of deduction u/s 10A - Loss incurred by one of the STPI units was not set off against the business profits while computing the deduction allowable u/s 10A - assessee engaged in the business of Business Process Outsourcing (BPO) - Held that - Assessment order was passed by the Assessing Officer after examination of details called for and furnished and on application of mind. The AO has examined the aspects of computation and allowability of deduction u/s 10A and has also examined the details called for in respect of foreign currency expenses. Also, there were judicial decisions in favour of the assessee on the issues dealt with by the CIT in the order passed u/s 263 as on the date of said order and which fact has been acknowledged by the CIT. Even otherwise, the issues dealt with by the CIT in the order passed u/s 263 are capable of two views and the AO has taken one of the possible views. It is settled law that when an officer adopts one of the courses permissible in law and it has resulted in a loss of Revenue or when two views are possible and the Assessing Officer takes one view with which the CIT does not agree, the order cannot be treated as erroneous in so far as it is prejudicial to the interests of Revenue. Hence, order passed by CIT u/s 263 is without jurisdiction and liable to be quashed - Decided in favor of assessee.

Summary

Issues Involved:
1. Jurisdiction under Section 263 of the Income Tax Act.
2. Reduction of foreign currency expenses from 'export turnover' in computing deduction under Section 10A.
3. Set-off of losses of other STPI units while computing deduction under Section 10A.

Detailed Analysis:

1. Jurisdiction under Section 263 of the Income Tax Act:
The primary issue is whether the Commissioner of Income Tax (CIT) was justified in assuming jurisdiction under Section 263 to revise the assessment order passed by the Assessing Officer (AO). The CIT contended that the AO's order was erroneous and prejudicial to the interests of the Revenue due to improper application of mind and lack of findings on key issues. The assessee argued that the AO had verified all details and taken a possible view, which cannot be considered erroneous merely because the CIT disagreed. The Tribunal held that the AO had indeed examined the relevant details and provided reasons for his conclusions, thus the CIT's assumption of jurisdiction under Section 263 was not justified.

2. Reduction of Foreign Currency Expenses from 'Export Turnover' in Computing Deduction under Section 10A:
The CIT argued that the AO had wrongly allowed the deduction under Section 10A without reducing foreign currency expenses from 'export turnover,' resulting in excess allowance of deduction. The assessee contended that these expenses should not be reduced as they were not incurred for rendering technical services outside India but for BPO activities, which are considered 'computer software' under the relevant provisions. The Tribunal noted that the AO had examined these expenses and concluded that the CIT's view was not correct. The Tribunal also referenced decisions supporting the assessee's position, including the Special Bench decision in Zylog Systems Ltd., which held that foreign currency expenses for developing and exporting computer software should not be reduced from 'export turnover.'

3. Set-off of Losses of Other STPI Units while Computing Deduction under Section 10A:
The CIT held that the AO had erred by not setting off the losses of one STPI unit against the profits of other STPI units while computing the deduction under Section 10A. The assessee argued that the deduction should be computed separately for each unit without setting off losses from other units. The Tribunal found that the AO had taken a possible view supported by judicial precedents, including the Karnataka High Court decision in Yokogawa India Ltd., which stated that deduction under Section 10A should be allowed without setting off losses of other units. The Tribunal concluded that the CIT's view was incorrect and the AO's order was not erroneous.

Conclusion:
The Tribunal quashed the CIT's order under Section 263, holding that the AO had properly examined the details, applied his mind, and taken a possible view supported by judicial precedents. The Tribunal emphasized that the CIT cannot assume jurisdiction under Section 263 merely because he disagrees with the AO's conclusions. The appeal of the assessee was allowed.