9911796707
TMI Blog2016 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case. 2. The CIT(A) erred in directing the AO to compute the allowable deduction u/s 80HHC by adopting Rs. 1,23,58,206/- as the total turnover in place of Rs. 1,26,63,139/- adopted by the assessee by placing reliance on the decision of Madras High Court in the case of Sarathy Palayacat Co (1993) 103 Taxman 53 wherein interalia reliance was placed on the decision of Hon'blel Supreme Court in the case of Ajantha Electricals (1995) 215 ITR 114 without appreciating the fact that an affidavit filed by the CA cannot be a substitute for the necessary certificate and the same should not be the basis for the additional grounds submitted by the assessee. 3. For these and such other grounds that may be urged at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground that the assessee failed to establish that the assessee made an application before CIT for extension of time. On further appeal, CIT(A) allowed claim of the assessee by observing that the fact that the AO failed to place the matter before the CIT when he noticed that sale proceeds were received beyond stipulated time. 4. Before us, learned Departmental Representative has submitted that the assessee has failed to bring on record any evidence to show that the reasons for not bringing export sale proceeds within stipulated time were beyond the control of the assessee. He has further contended that onus is on the assessee to explain reasons for not bringing convertible foreign exchange within stipulated period and therefore, if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record of the AO in para.6 as under: "6. Having heard both the parties and having considered the rival contentions, we find that the assessee has mentioned the ack. no as well as the date of application are submitted before the CIT(A) for extension of time in the CA's certificate. As rightly pointed out by the learned counsel for the assessee the application has not been verified by the authorities below. This the very root of the matter, as the assessee would entitled to the entire claim of deduction u/s BOHHC, if the assessee had really made the application for extension of time within the period of six months or even thereafter as held by the Hon'ble Allahabad High Court, cited supra. In view of the same, we deem it fit and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contemplated therein within a period of six months from the end of the previous year or for the purpose of invoking the power of the Chief Commissioner or Commissioner to allow further period in case the assessee is unable to receive in or bring into India the sale proceeds for reasons beyond his control. If such a position is accepted, then there is no scope for making any application for the purpose of having the benefit of further period before the expiry of six months. On the other hand, it is our considered view that the deductibility claimed in the return is to be decided in computing the total income in case six months.' period has expired before the assessee received or brought into India the sale proceeds, in that event, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer and the appellant had to find out an alternative buyer abroad itself instead of getting the goods back to India. In the end, appellant had received the sale proceeds to the tune of Rs. 12358206 in convertible foreign exchange and has placed on record the relevant bank records evidencing the same, which fact was examined by the AO at the time of earlier appellate proceedings before my predecessor and is undisputed. Thus, in the overall situation, appellant had failed to receive only a small fraction of the export proceeds and there is no default on the substantial requirement. In this back ground, in my opinion,, the insistence on procedural formalities of obtaining sanction from the CIT would only defeat the purpose of the Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is governed by the procedural aspect of the section which fixes time Limit, which time Limit is not rigid but is cable of being extended by the Chief Commissioner". In view of the above discussion, I am of the considered opinion that the appellant is entitled for deduction u/s 80HHC of the Act in respect of the convertible -foreign exchange received of Rs. 12358206. Accordingly, the AO is directed to compute the allowable deduction by treating the aforesaid amount as total turnover in the place of Rs. 12663139 adopted by the appellant. Appellant gets relief on this issue to the above extent." 6.4 There is no dispute that assessee made the claim of deduction u/s 80-HHC in the return of income and the AO while passing the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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