- (1.) MR . Khaitan, learned senior advocate submitted that in terms of the order passed by the Court, the notice was served but no one appeared. Hence we take up this matter.
(2.) THE appeal was admitted on the following substantial questions of law : "(a) Whether on a proper interpretation of the provisions of s. 80HHC of the IT Act, 1961, the Tribunal was justified in law in holding that 'profit' in cl. (a) of sub -s. (3) included losses and that losses could not be ignored and a negative figure had to be worked out for the purpose of the said clause in respect of profits derived from export ? (b) Whether on a proper interpretation of the provisions of s. 80HHC of the IT Act, 1961, the Tribunal was justified in upholding the action of the AO in determining a negative figure under cl. (a) of sub -s. (3) and allowing deduction under the said section after deducting such negative figure from the amount computed under the proviso contained in sub -s. (3) ? (c) Whether and in any event the Tribunal was justified in law in upholding the action of the AO in adopting the figure of loss at Rs. 13,13,035 instead of Rs. 9,73,345 claimed by the appellant when the said issue was not subject -matter of the appeal before the Tribunal since the CIT(A) had not decided the same and no submissions were made thereon by the parties -
(3.) AMENDMENT of s. 80HHC, fifth proviso, which has been specifically stated as follows : "Provided also that in case the computation under cl. (a) or cl. (b) or cl. (c) of this sub -section is a loss, such loss shall be set off against the amount which bears to ninety per cent of - - (a) any sum referred to in cl. (iiia) or cl. (iiib) or cl. (iiic), as the case may be, or (b) any sum referred to in cl. (iiid) or cl. (iiie), as the case may be, of s. 28, as applicable in the case of an assessee referred to in the second or the third or the fourth proviso, as the case may be, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee." Therefore, Mr. Khaitan did not press the question No. 1 on behalf of the appellant. This should be answered in favour of the Department.;