Pinaki Chandra Ghose, J. - (1.) THIS is an application, inter alia, for issuance of a writ in the nature of mandamus commanding the respondents to withdraw, cancel, recall and rescind the impugned order of assessment passed by respondent No. 1 for the assessment year 1993-94 in refusing to allow the full deduction to the petitioners under Section 80HHC of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"), and further writ in the nature of mandamus commanding respondent No. 2 to grant approval under Section 80HHC(2)(a) of the said Act beyond six months to forbear from giving effect to the amendment in respect of Section 80HHC(2)(a) with effect from June 1, 1999, by the Finance Act, 1999, and also to dispose of the application filed by the petitioner for extension of time for repatriation of balance export value beyond six months.
(2.) THE facts of the case briefly are as follows : Petitioner No. 1 is a private limited company. Petitioner No. 1 supplied materials in terms of an order received at Rs. 40,19,677.69. THE petitioner earned an export profit of Rs. 27,08,787. Petitioner No. 1 claimed deduction of the said amount under Section 80HHC of the said Act. Petitioner No. 1 filed a return for the said assessment year and a "nil" return was filed under Section 139(1) of the said Act. Petitioner No. 1 also filed an audited account, tax audit and prescribed certificate for claim of deduction under Section 80HHC of the said Act. THE said return was originally accepted under Section 143(1)(a) of the said Act and the notice of hearing was issued under Section 143(2) of the said Act. The petitioner in the course of hearing filed its details of realisation of sale proceeds which were effected within six months. According to the petitioner, petitioner No. 1 realised a sum of Rs. 25,71,655 out of total sale proceeds of Rs. 40,19,677.69 leaving a balance sum of Rs. 14,48,022.80. According to the petitioner, the petitioner was able to realise Rs. 36,13,808 out of the said total sale proceeds. The Assessing Officer (hereinafter referred to as "the AO") refused to grant any deduction to the petitioner in respect of the amount which could not be realised by the petitioner. According to the petitioner, the Assessing Officer had no jurisdiction to assume jurisdiction under Section 80HHC(2)(a). The claim of the said deduction under Section 80HHC is applicable in respect of the export proceeds. According to the petitioner, the Assessing Officer was obliged to refer the matter to the Commissioner of Income-tax (hereinafter referred to as "the CIT"), for his approval or disapproval, since the Assessing Officer had no jurisdiction in the matter to decide the same. Accordingly, it is submitted that the said Assessing Officer passed such order without any jurisdiction.
(3.) IT is further the case of the petitioner that the petitioner applied before the Commissioner of Income-tax for extension of time for bringing the balance export proceeds beyond the period of six months on February 16, 2001, March 5, 2001 and March 16, 2001, by their letters. The Commissioner of Income-tax, West Bengal-IV, returned the petitioners' application for extension of time for repatriation of sale proceeds by a letter dated March 22/23, 2001. According to the petitioner, the change brought in by the Finance Act, 1999, was with effect from June 1, 1999, and such changes cannot affect the petitioners' application. The Commissioner of Income-tax, West Bengal-IV, refused to do so in view of the fact that the law has been amended and such power only can be exercised by the Reserve Bank of India or such other authority specifically vested with the said power. According to petitioner No. 1, the said Commissioner has also failed to exercise his jurisdiction vested in him for the order. According to them, the order passed by the said Commissioner is also bad in law.;