TMI Blog2004 (3) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... t derived from the services provided to foreign tourists. The assessee furnished its reply which was considered by the AO. He observed that in asst. yrs. 1990-91, 1991-92 and 1992-93, this issue has been examined at length and deduction under s. 80HHD of the Act was not allowed on the income from the abovementioned sources. The AO also observed that in asst. yrs. 1990-91 and 1991-92 even the CIT(A) has confirmed the disallowance of deduction under s. 80HHD of the Act on such incomes. Following his order for these years, the AO excluded the incomes from the above sources from the eligible profits and allowed deduction under s. 80HHD of the Act on the remainder. Following the CIT(A) s order in asst. yrs. 1990-91 and 1991-92, the CIT(A) upheld the action of the AO which has been challenged before us. 4. It is argued by the learned counsel that admittedly the AO/CIT(A) have gone by their orders for asst. yrs. 1990-91 to 1992-93. He stated that in asst. yr. 1990-91 when the assessee s claim was rejected by the CIT(A) an appeal was preferred before the Tribunal. The Tribunal vide its order dt. 25th Sept., 2000, had adjudicated this issue. Vide para 10 of its order, the Tribunal has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of International Research Park Lab. vs. Asstt. CIT (1994) 50 TTJ (Del)(SB) 661 : (1995) 212 ITR 1 (Del)(SB)(AT), the learned counsel heavily relied on the decision of Jaipur, Special Bench in the case of Rajeev Enterprises vs. AO (2003) 78 TTJ (Jp)(SB) 330. He stated that the Tribunal has held that the interest income was the business income and, therefore, eligible for deduction under s. 80HHC of the Act. The learned counsel also referred to the findings of the Tribunal in para 31 of its order in which it was held that what was to be taken into account was profits and gains of business in the same proportion which the export turnover bore to the total turnover. It was not necessary that every receipt to qualify for the deduction must be "derived from export of goods or merchandise". It was enough if the income was part of the profits and gains of business. The learned counsel stated that in view of the Tribunal order in earlier years, there is no dispute that the interest was the part of the profits and gains of business or profession. He referred to the decisions of Hon ble Bombay High Court reported in CIT vs. Shrike Construction Equipments Ltd. (2000) 163 CTR (Bom) 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, being an Indian company or a person (other than a company) resident in India, is engaged in the business of a hotel or of a tour operator, approved by the prescribed authority in this behalf or of a travel agent, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee a deduction of a sum equal to the aggregate of (a) fifty per cent of the profits derived by him from services provided to foreign tourists; and (b) so much of the amount out of the remaining profits referred to in cl. (a) as is debited to the P L a/c of the previous year in respect of which the deduction is to be allowed and credited to a reserve account to be utilised for the purposes of the business of the assessee in the manner laid down in sub-s. (4)." 6. In the earlier years also, the appellant had claimed deduction under s. 80HHD of the Act which has been allowed by the Tribunal by treating the interest income as profits and gains derived from services to the foreign tourists. Thus, the issue was squarely covered in favour of the appellant by the decision of the Tribunal in the appellant s own case. Following the rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the assessee to do any other business. The Tribunal had examined this issue in the earlier years and has held that the interest income was the business income derived from the services rendered to the foreign tourists. 7. Moreover, the provisions of s. 80HHD were altogether different than the provisions of s. 80HH of the Act which was the issue in the case of Pandian Chemicals. Sec. 80HH provides for deduction where the gross total income "includes any profits and gains derived from an industrial undertaking". The section has not defined the word "derived" nor it has provided for computation of profits which will be eligible for deduction under s. 80HH of the Act. The s. 80HHD of the Act does not talk of profits derived from industrial undertaking. This section provides for deduction of the "profits derived by the appellant from services provided to foreign tourists". Further sub-s. (3) of s. 80HHD of the Act has provided the formula for computation of the profits "derived from services provided to the foreign tourists". Similarly, s. 80HHC(1) of the Act has prescribed the deduction of profits "derived by the assessee from the export of such goods or merchandise". Sub-s. (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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