TMI Blog2015 (1) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... s reported in [2014 (3) TMI 938 - GUJARAT HIGH COURT] wherein this Court has answered the question in favour of the assessee and held that that the foreign exchange gain arising out of the fluctuation in the rate of foreign exchange cannot be divested from the export business of the assessee and once export is made, due to variety of reasons, the remission of the export sale consideration may not be made immediately and that all foreign currencies received by the assessee need not be converted into Indian Rupees on the last date of the accounting period. - Tribunal is justified in holding that while computing deduction u/s. 80IA exchange rate difference should be treated to be 'derived' from industrial undertaking whereas the Tribunal has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Assessing Officer. 2.1 On appeal before the ITAT by the assessee, by impugned order, ITAT has set aside the decision of CIT (Appeals) and allowed the appeal of the revenue. Being aggrieved and dissatisfied with the impugned order passed by the ITAT, the assessee has preferred the present Tax Appeals for consideration of the aforesaid substantial question of law. 3. The tribunal while passing the impugned order has relied on the decisions of the Calcutta High Court in the case of CIT vs. Chloride India Ltd reported in 256 ITR 625 as well as decision of the Special Bench of the ITAT in the case of IFB Agro Industries vs. DCIT reproted in 83 ITD 96 (Cal) and concluded that octroi, sales tax and excise duty should be excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under: 25. Under the circumstances, we have no hesitation in upholding the view of the Tribunal. Quite apart, the issue is substantially covered by the decision of the Commissioner of Income-tax vs. Amba Impex (supra). Consistent and at times independent trend of the judicial pronouncements of Courts across the country need not be disturbed. Even independently, we are of the view that the foreign exchange gain arising out of the fluctuation in the rate of foreign exchange cannot be divested from the export business of the assessee. As noted, once export is made, due to variety of reasons, the remission of the export sale consideration may not be made immediately. Under the accounting principles, therefore, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derived from the export business must fail. If this is the position when the remittance is made during the same year of the export, we fail to see what material change can it bring about if within the time permitted under sub-section(2) of section 80HHC, the remittance is made but in the process accounting year has changed. To our mind mere change in the accounting year can have no real impact on the nature of the receipt. The conclusion of the Assessing Officer that since the year during which such sale proceeds were received by the assessee export was not made, would not in any manner change the situation. The assessee being engaged in the business of export and having made the export, mere fact of the remittance being made after 31st of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and provides that the same shall be telegraphic transfer of buying rate of such currency on the specified date. The term specified date has been defined in Explanation-2 to the said sub-rule (1). Rule 115 of the Income-tax Rules, 1962 thus has application for a specific purpose and has no bearing while judging whether foreign exchange rate fluctuation gain can form part of the deduction under section 80HHC of the Act. In case of Commissioner of Income-tax and others vs. Chowgule and Co.Ltd. reported in [1996] 218 ITR 384, the Court held that rule 115 does not lay down that all foreign currencies received by the assessee will be converted into Indian rupees only on the last date of the accounting period. Rule only fixed the rate of conv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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