TMI Blog2002 (1) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... see is maintaining a flight kitchen for supplying meals to foreign airlines to be consumed on board in the foreign bound aircrafts. The assessee preferred claimed under s. 80HHC qua these sales. The AO following his earlier years' orders held that the sales made by the flight kitchen of the assessee to foreign airlines are not exports of the assessee company. Aggrieved, the assessee preferred first appeal where the assessee submitted that the duly authorised custom Departmental Officers and staff were posted in the premises where these meals were prepared and (sic) to aircrafts. The custom staff ensured that the goods prepared by the assessee are boarded on the foreign bound flights. This arrangement amounted to crossing of the goods fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 263 and the Tribunal held that the order of the AO was not erroneous or prejudicial to the interest of the Revenue and the order of the CIT(A) under s. 263 was quashed. It was contended that the issue before the Tribunal is same. The learned counsel further drew our attention to Expln. (aa) appended to s. 80HHC which reads as under : (aaa) export out of India shall not include any transaction by way of sale or otherwise, in a shop, emporium or any other establishment situate in India, not involving clearance at any customs station as defined in the Customs Act, 1962 (52 of 1962) The learned counsel contended that it is an exclusive definition wherein if any sale is effected in a shop emporium or any other establishment situate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been disputed by the lower authorities. The supply is undertaken under the supervision of the custom authorities which amounts to clearance at a custom station as defined in Customs Act, 1962. The goods supplied are utilised by for the foreign bound passengers on boards on such aircrafts. Looking at the common parlance test, the sale is nothing but export and since these sales involved clearance at a customs station, the transactions of the assessee qualify the defination of export as prescribed by Expln. (aa) to s. 80HHC of the Act. The learned counsel addressed to various objections of the AO and the CIT(A) that there is a possibility of aircraft being delayed and the consumption of articles in India, flight kitchens having Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 69(Raj) and some other Tribunal judgments. The learned counsel demonstrated the pohotgraphs of the assessee's flight kitchen at Mumbai International Airport Terminus and the positioning of the custom's office to establish that these activities were carried on under the vigil and supervision of the customs authorities. 6. The learned Departmental Representative, on the other hand, contended that the Tribunal judgment in asst. yr. 1987-88 in ITA No. 3234/B/1992 is an order to hold whether the action of the CIT under s. 263 was justified or not. In the present appeal, the issue is purely on merits as to whether the activity of the assessee constitute export or not. Therefore, much help cannot be derived from the Tribunal's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange, s. 80HHD has been introduced for giving relief from 1st April, 1989 and 10CCA also. Even those clauses do not include sales by shops. Consequently, the assessee has failed to establish that the sales are exports. Therefore, deduction under s. 80HHC was rightly denied. The order of the CIT(A) was relied upon. 7. We have heard the rival submissions and perused the material available on record. The word export is not defined in the IT Act. Therefore, the same has to be construed in the common parlance test. Looking at common parlance test, the export means sending out goods for sale to any other country or countries. The activity of the assessee is to be viewed from this angle as to whether the activity of the assessee amounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foreigners leave India the goods will be cleared at customs. This might have led to some unscrupulous users therefore, Expln. (aa) was introduced and what mischief did it cure, was that the goods must involve clearance at any custom station as defined in Customs Act, 1962. If the legislature wanted to go beyond that the same could have been introduced by necessary wording. Looking at this Explanation what the legislature wanted was that the goods should ultimately leave India should also be cleared by the custom station as defined in Customs Act, 1962. Looking at this Explanation, if the goods are sold where there is a custom clearance station and such goods leave India, the same will be export entitled to deduction under s. 80HHC. The in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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