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2022 (6) TMI 902 - HC - Income TaxDeduction u/s. 80HHC - retrospective applicability of the amendment of the year 1991 by the Finance Act of 1991 - Whether Appellate Tribunal was justified in reversing the order of the CIT(A) allowing the claim of deduction? - HELD THAT:- In the case of P.R. Prabhakar [2006 (7) TMI 121 - SUPREME COURT] considered the question as to whether the amendment of the year 1991 was prospective or retrospective. The Supreme Court observed that the amendment of the year 1991 was prospective in nature. In the light of decision P.R. Prabhakar, the view taken by the Tribunal that the amendment is retrospective in nature and therefore, the commission would not entitle the Appellant – Assessee for exemption does not survive This finding of the Tribunal was the foundation of its decision. In the case of P.R. Prabhakar, the Supreme Court also observed that since the amendment to Section 80HHC of the year 1991 was prospective, the commission for export constituted export profits and the assessee would be entitled to deduction under Section 80HHC for the Assessment Year 1991 that is prior to the amendment. The Supreme Court has settled these two questions in its decision. Both grounds on which the Tribunal passes the impugned order therefore do not survive. We have perused the orders of the Assessing Officer, Commissioner of Income Tax (Appeals) and the Tribunal. There was no debate that the commission claimed by the Appellant – Assessee was not related to export. In fact, the authorities have observed that, in law the Appellant – Assessee was not entitled to claim commission, of any kind, in respect of claim under Section 80HHC and there was no differentiation made as regards the type of commission. Even otherwise, the learned Counsel for the Appellant – Revenue has placed on record the audited account by way of praecipe wherein it is shown that the commission was received by the Appellant – Assessee in foreign exchange and was relatable to export. This being the position wherein the questions of law framed in this Appeal having been answered in favour of the Appellant – Assessee by the decision of the Supreme Court as above, the Appeal will have to be allowed and the question framed will have to be answered accordingly.
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