1 itxa2659-09 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2659 OF 2009 The Commissioner of Income Tax – 15, Mumbai ..Appellant. Versus M/s.Metal Gems ..Respondent. Mr.Suresh Kumar for the appellant. None for the respondent. CORAM : J.P. Devadhar & K.K. Tated, JJ. DATE : 16th September 2011 P.C. : 1. Whether the Income Tax Appellate Tribunal was justified in quashing the order passed by the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961 is the question raised in this appeal. 2. In the assessment order relating to assessment year 2002-03, the assessing officer had granted relief under Section 80HHC by excluding the interest income treated as income from other sources. 3. The Commissioner of Income Tax by invoking Section 263 of the Income Tax Act, 1961 held that interest receipts on account of M/s.Elpro 2 itxa2659-09 International Limited, requires reconciliation and granting of 80IB deduction in respect of job charges requires further examination. 4. The Income Tax Appellate Tribunal set aside the order of the Commissioner of Income Tax on the ground that since the assessment was neither erroneous nor prejudicial to the interests of the Revenue, the Commissioner of Income Tax was not justified in invoking jurisdiction under Section 263 of the Act. 5. In our opinion, no fault can be found with the decision of the Income Tax Appellate Tribunal, because, during the course of assessment proceedings the assessing officer had raised the query relating to interest on belated payment and job work charges and after receiving full particulars and on application of mind allowed the claim of the assessee. Moreover, the Income Tax Appellate Tribunal has recorded a finding that the view taken by the assessing officer was a possible view and, therefore, the Commissioner of Income Tax was not justified in invoking jurisdiction under Section 263 of the Act. Moreover, the decision of the Commissioner of Income Tax is not based on any material on record and in fact, the Commissioner of Income Tax has directed the assessing officer to further investigate into the matter and if satisfied allow the claim of the assessee. 6. In these circumstances, the decision of the Income Tax Appellate 3 itxa2659-09 Tribunal in quashing the order passed by the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961 cannot be faulted. The appeal is accordingly dismissed with no order as to costs. (K.K. Tated, J.) (J.P. Devadhar, J.)