TMI Blog2016 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the assessee was unable to do so for the reasons beyond his control. Therefore, once the assessee made a claim, the AO was required to place the same before the CCIT or CIT, as case may be, and the assessee was required to explain the reason for delay. In the case in hand, AO has not followed the procedure as required to place the matter before the CCIT or CIT, as the case may be, but himself has decided to refuse the extension of time claimed by the assessee which is beyond the jurisdiction of the AO. Accordingly, in the facts and circumstances of the case, we do not find any error or illegality in the order of the CIT(A). - DEcided against revenue - ITA No.696/Bang/2015 - - - Dated:- 22-1-2016 - SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER For The Appellant : Shri Sunil Kumar Agarwal, JCIT(DR) For The Respondent : Shri C.Ramesh, CA. ORDER Per VIJAY PAL RAO, JM : This appeal by the revenue is directed against the order of dated 3/2/2015 of the CIT(A) for the assessment year 1993-94. 2. The revenue has raised the following grounds: 1. The order of the learned CIT(Appeals) insofar as it is prejudicial to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 the reasons for delay are beyond the control of the assessee, time for bringing the same can be extended by the authority. In the absence of any such proposal or such application of extension of time, assessee has violated the conditions as stipulated u/s 80-HHC(2)(a). He has relied upon the order of the AO. 5. On the other hand, learned AR of the assessee has submitted that while remitting issue to the record of the AO, this Tribunal has given a specific direction to AO to decide the issue as per law and in light of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has decided the issue that the assessee failed to bring export sale proceeds within the period stipulated by the Act and therefore, not entitled for benefit u/s 80-HHC. 6.3 The CIT(A) while deciding the issue has held in paras.8 to 12 as under: 8. The Hon'ble ITAT in its order directed the AO to decide the issue in accordance with law in the light of the decision of the Hon'ble Allahabad High Court in the case of Azad tobacco Factory reported in 225 ITR 1002. In the aforesaid decision, at para 18 of the order their lordships held that 'In fine, according to our view, a plain reading of section 80HHc(2)(a) does not contemplate making of any application by the assessee within a period of six months either for availing of the deductibility with respect to sale proceeds received in or brought into India as 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 80 HHC. In fact the CBDT's memorandum explaining the provisions of Section 80HHC vide finance Act 1990 and 1999 place emphasis on actual receipt of convertible foreign currency as a condition to avail the deduction and the approval of the CIT or RBI as the case may be was to address the hardship if any faced by the tax payers in complying with the said requirement and not to impose a further impediment or a requirement in the form of approval. 11. The Hon'ble Madras High Court in the case of Sarathy Palayacat Co. vs Chief Commissioner of Income Tax (1999) 103 Taxman 53 after relying on the decision of the Hon'ble Supreme Court decision in the case of CIT vs. Ajanta Electricals (1995) 215 ITR 114 held at para 5 as under: These observations of the Apex Court apply with equal force for determining the proper construction to be placed on section 8OHHC(2)(a). The provisions here fixing the time within which the monies have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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