Sabyasachi Mukharji, J. - (1.) In this reference under Section 256(2) of the I.T. Act, 1961, the following questions have been referred to this court, " 1. Whether, on the facts and in the circumstances of the case and on a proper interpretation of the relevant provisions of the Special Export Promotion Scheme, the receipts of Rs. 32,91,180 and Rs. 21,26,232 in the assessment years 1965-66 and 1966-67, respectively, arising out of the transfer of the import entitlements are capital receipts, and not revenue profits assessable to tax ?
(2.) Whether the finding of the Tribunal that the assessee entered the business of manufactures and exports of aluminium goods with the clear intention of taking advantage of such Special Export Promotion Scheme is based on any material or evidence and is perverse ?
(3.) Whether the finding of the Tribunal that the profits and gains from the sale proceeds of import entitlements were foreseen by the assessee at the time of making exports and, therefore, were earned by the assessee in the ordinary course of its business is based upon any material or evidence and is perverse ? " 2. The assessment years involved are 1965-66 and 1966-67 for which the relevanx accounting years are the calendar years 1964 and 1965, respectively. The assessee is a limited company which is engaged in the business of aluminium goods which are exported by the assessee. 3. During the course of its business of export of aluminium goods and by virtue of the Special Export Promotion Scheme for engineering goods made out by the Govt. of India, Ministry of Commerce & Industry, Department of International Trade, the assessee was entitled to get import entitlements. In view of the fact that a good deal of arguments were advanced on the nature of the right under the import entitlements it would be necessary to refer to some of the provisions of the Scheme under which the assessee was so entitled. As we have mentioned before the said Scheme is an Export Promotion Scheme for engineering goods and it applied to the exports of Indian goods other than " rolled steel " which had not undergone any substantial processing effected by exporters registered with Engineering Export Promotion Council, Calcutta. The Scheme came into force from April 1, 1973, and would be applicable to export of goods covered by the Scheme with effect from or after Apri 1,1963. The Scheme was contemplated to continue and remain in force on a permanent basis until further orders. Exports effected before April 1,1963, will be governed by the provisions in force prior thereto. All the previous schemes in this regard were thereby superseded as regards exports of such goods effected from April 1, 1963, onwards. However, the concerns validly registered under the previous scheme as on March 31, 1963, might be deemed to have been registered under the revised scheme with effect from April 1, 1963.;