TMI Blog2010 (7) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant appeal was admitted on the following substantial questions of law by this court by an order datedSeptember 4, 2002: "(i) Whether in a case where export invoices are raised and realized in foreign currency, the difference between the Indian currency equivalent at the time of raising of the invoices and the Indian currency equivalent at the time of their realization due to fluctuation in foreign exchange rates is part and parcel of the export turnover and total turnover of the business for the purposes of section 80HHC of the Income-tax Act, 1961 ? (ii) Whether the Tribunal was justified in law in holding that the sum of Rs. 10,61,326 was not integral part of the appellant's export turnover/sale proceeds and its purported findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or merchandise, other than those specified in clause (b), if the sale proceeds of such goods or merchandise exported out of India are received in, or brought into, India by the assessee (other than the supporting manufacturer) in convertible foreign exchange within a period of six months from the end of the previous year or, where the Chief Commissioner or Commissioner is satisfied (for reasons to be recorded in writing) that the assessee is, for reasons beyond his control, unable to do within the said period of six months, within such further period as the Chief Commissioner or Commissioner may allow in this behalf." 6. It has been explained therein the meaning of "export-turnover" which reads as follows: "`export turnover' means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held whether the export bill was realised within the time or not. 10. Mr. J. P. Khaitan, senior advocate, appearing for the appellant, submits that export was made in terms of foreign currency. Had it been realised at a later point of time because of the fluctuation of the foreign exchange rate fortuitously the appellant company would get the amount out of the said export. He further clarified that the said amount of Rs. 5,61,098 as observed by the Assessing Officer is relatable to some other item which is not the subject-matter and in any event, due and proper extension had been granted. He also pointed out that this surplus owing to fluctuation of foreign exchange rate in connection with export is always treated to be an export turn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to us, consideration of export turnover has to be considered in the context of mode of payment being made by foreign buyers, not in the mode of convertible exchange. 14. However, the Legislature in its wisdom has cleared that in case of convertible foreign exchange, a time limit of six months has been prescribed. Therefore, this aspect cannot be ignored. Factually, neither the Commissioner of Income-tax (Appeals) nor the Tribunal have gone into the question whether the export turnover was realized beyond six months or not. Hence, we do not think that this question should be decided by us as no such point has been formulated by this court, nor any cross-appeal has been filed in this case. We are of the view that this amount received i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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