Decided on December 13,1994



M.A. Bakhshi, Judicial Member - (1.) COMMON issue involved in these two appeals of the revenue is relating to deduction under Section 80HHC. Assessing Officer had not included the counter sales made by the assessee against foreign exchange in India as the export turnover in respect of which deduction under Section 80HHC was permissible. CIT(A) passed a consolidated order for assessment years 1987-88 and 1988-89 directing the Assessing Officer to treat the local counter sales made against foreign exchange as export sales for the purposes of computation of deduction under Section 80HHC.
(2.) It has been brought to our notice that Section 80HHC has been amended by the Finance (No. 2) Act of 1991 retrospectively by virtue of which counter sales are not to be regarded to be exports out of India which do not involve clearance at any custom station as defined in the Customs Act of 1962. In this connection, reliance has been placed on the decision of the Tribunal in the case of Assessing Officer v. Gem Arts [IT Appeal No. 323 (Delhi) of 1990, dated 21-2-1994]. The learned counsel for the assessee has conceded before us that Section 80HHC has been amended retrospectively but has prayed that the matter may be remitted back to the Assessing Officer in order to examine as to whether the sale of goods made by the assessee involve clearance at the custom station as defined in the Customs Act, 1962. In this connection, reference has been made to the following two decisions of the Tribunal: 1. Dy. Commissioner v. Ganeshi Lal & Sons [IT Appeal No. 3421 (Delhi) of 1990, dated 4-8-1994]. 2. ITO v. Jewel House [IT Appeal No. 721 (Delhi) of 1992, dated 29-4-1994].
(3.) THE learned D. R. contended that in view of the decision of the Tribunal in the case of M/s Gem Arts, Agra, it is not necessary to remit the matter to the file of the Assessing Officer as the Tribunal has recorded a categorical finding that the customs clearance referred to in Section 80HHC is applicable in respect of clearance sought by the exporter.;

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