DCIT, Bangalore V. M/s Motorola India Pvt. Ltd., Bangalore

ITA 1532/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51337 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 29-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 263

Judgement Text

ITA.1532/BANG/2010 P AGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'B', BANGALORE BEFORE SHRI. N. BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI. GEORGE GEORGE K. JUDICIAL MEMBER I.T.A NO.1532/BANG/2010 (ASSESSMENT YEAR : 2004-05) DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE -12(1), BANGALORE .. APPELLANT V. M/S. MOTOROLA INDIA P. LTD., NO.66/1, PLOT NO.5, BAGAMANE TECH PARK, C. V. RAMAN NAGAR, BANGALORE 560 071 PAN : AABCM2326D .. RESPONDENT APPELLANT BY : SHRI. ETWA MUNDA, COMMISSIONER OF IN COME-TAX-III RESPONDENT BY : NONE DATE OF HEARING : 18.10.2011 DATE OF PRONOUNCEMENT : 18.10.2011 O R D E R PER N. BARATHVAJA SANKAR, VICE PRESIDENT : THIS IS AN APPEAL PREFERRED BY THE REVENUE FOR THE ASSESSMENT YEAR 2004-05 IN THE CASE OF M/S. MOTOROLA INDIA P. LTD., (FORMERLY KNOWN AS M/S. MOTOROLA INDIA ELECTRONICS P. LTD), B ANGALORE, AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-III, BANGALORE, DATED.18.08.2010. ITA.1532/BANG/2010 P AGE - 2 02. IN THIS CASE, THE COMMISSIONER OF INCOME-TAX, B ANGALORE-III PASSED AN ORDER U/S.263, DATED.22.04.2009, FOR THE ASSESSMENT YEAR 2004-05. AGAINST THE SAID ORDER, THE ASSESSEE CAME ON APPEAL BEFORE THE TRIBUNAL AND THE ITAT ALLOWED THE ASSESSEE'S AP PEAL BY QUASHING THE ORDER U/S.263 BY OBSERVING AS UNDER : 'THE ASSESSING OFFICER HAS PASSED THE ORDER U/S.143 (3) AND ALL FACTS AND CIRCUMSTANCES AND POSSIBLE LEGAL POSI TION AT RELEVANT POINT OF TIME. THE ASSESSING OFFICER HAS REACHED TO CERTAIN CONCLUSION AFTER APPRECIATION OF FACTS A NALYSED UNDER THE LEGAL PROVISIONS AVAILABLE AT THE RELEVAN T POINT OF TIME, INCLUDING THE CASE LAWS. THE ASSESSING OFFIC ER HAS TAKEN ONE OF THE POSSIBLE VIEW UNDER THE FACTS AND CIRCUMSTANCES INCLUDING LEGAL PROPOSITION. THEN IT CANNOT BE SAID TO BE ERRONEOUS. IT MAY BE ERRONEOUS WITH THE ANGLE OF COMMISSIONER OF INCOME-TAX, BUT THE SCOPE OF PROVISIONS OF SECTION 263 DOES NOT ALLOW THE COMMIS SIONER OF INCOME-TAX TO SUBSTITUTE HIS OPINION. THE ASSES SING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEW, AT RELE VANT POINT OF TIME. THE PROVISIONS OF SECTION 263 CAN BE INVO KED IN ABSENCE OF PROPER INVESTIGATION BY THE ASSESSING OF FICER. THE PROVISIONS OF SECTION 263 CAN BE INVOKED IN ABS ENCE OF NO ENQUIRY OR LACK OF INVESTIGATION CONDUCTED BY TH E ASSESSING OFFICER. BUT ONCE THE ASSESSING OFFICER HAS TAKEN A CERTAIN POSSIBLE VIEW UNDER THE FACTS AND CIRCUM STANCES, THE SCOPE OF INVOKING PROVISIONS OF SECTION 263 OF THE IT ACT DOES NOT SURVIVE. ACCORDINGLY, THE ORDER OF COMMIS SIONER OF INCOME-TAX IS SET ASIDE. IN THE RESULT, THE APP EAL FILED BY THE ASSESSEE IS ALLOWED.' ITA.1532/BANG/2010 P AGE - 3 03. IN THE MEANTIME, THE ASSESSING OFFICER HAS GIVE N EFFECT TO THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX U/S. 263 AND THE ASSESSEE WENT ON APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX(A) AGAINST THE 'GIVING EFFECT' ORDER WHICH WAS DISMISS ED BY THE COMMISSIONER OF INCOME-TAX(A), SINCE THE ORDER U/S. 263 ITSELF WAS QUASHED BY THE ITAT. HOWEVER, THE REVENUE IS AGGRI EVED AND IS ON SECOND APPEAL BEFORE US AGAINST THE ORDER OF THE CO MMISSIONER OF INCOME-TAX(A) QUASHING THE 'GIVING EFFECT' ORDER. 04. AT THE TIME OF HEARING NONE WAS PRESENT ON BEHA LF OF THE ASSESSEE EVEN THOUGH NOTICE WAS SERVED AND THE RELE VANT ACKNOWLEDGEMENT IS ON RECORD. 05. WE HAVE HEARD THE DEPARTMENTAL REPRESENTATIVE A ND CONSIDERED THE FACTS AND MATERIALS ON RECORD. EVENTHOUGH THE REVENUE HAS STATED IN ITS GROUNDS THAT THE DEPARTMENT IS ON APPEAL U/S .260A AGAINST THE TRIBUNAL ORDER, NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE TRIBUNAL'S ORDER HAS BEEN REVERSED OR QUASHED BY TH E HON'BLE HIGH COURT. IN SUCH CIRCUMSTANCES, THE TRIBUNAL ORDER H OLDS THE FIELD AND AS SUCH THE 'GIVING EFFECT' ORDER PASSED BY THE ASSESS ING OFFICER HAS NO LEGS STAND SINCE THE ORDER PASSED U/S.263 ITSELF WA S QUASHED BY THE ITAT. HENCE, WE DISMISS THE REVENUE'S APPEAL AS IN FRUCTUOUS. ITA.1532/BANG/2010 P AGE - 4 07 IN THE RESULT, REVENUE'S APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 18TH OCTOBER, 2011, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (N. BARATHVAJA SANKAR) JUDICIAL MEMBER VICE PRESIDENT