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TMI Blog2017 (5) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009 has framed the following substantial questions of law: "(i) Whether on the facts and circumstances of the case, the Tribunal was justified in allowing deduction u/s 80HHC to the assessee on counter sales of Rs. 4,14,45,879/- made to foreign tourists, ignoring the specific provisions of Explanation (aa) to Section 80 HHC of the Act, when the assessee has failed to prove that the goods have under gone custom clearance? (ii) Whether on the facts and circumstances of the case, the Tribunal as well as the CIT(A) was justified in allowing the deduction u/s 80 HHC of the Act, when there is no finding to the effect that the goods were cleared at any of the custom station? (iii) Whether the Tribunal was justified in holding the purchases ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchases shown by the assessee are unverifiable?" 2.2. This Court while admitting the appeal No.167/2009 on 04.05.2009 has framed the following substantial questions of law: "(i) Whether on the facts and circumstances of the case, the Tribunal was justified in holding the appeal filed by the revenue, against order passed on rectification application by the CIT(A) as not maintainable, without giving any finding whatsoever, by simply relying upon the order passed by it in ITA No.381 and 408/JP/07 and ignoring the fact that the issues involved in ITA No.381 and 408/JP/07 were different from the issues involved in the present appeal? (ii) Whether the Tribunal was justified in upholding the order of CIT(A) wherein it has held that the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other establishment situate in India, not involving clearance at any customs station as defined in the Customs Act, 1962 (52 of 1962)." 3. The Explanation explains what is "export out of India". Any transaction by way of sale or otherwise in a shop or emporium which does not involve clearance at a customs station as defined in Customs Act, 1962, is thereby excluded from the expression "export out of India". 4. The assessee has a business of safe of semi-precious and precious stones, handicrafts, jewellery, etc. In the return filed for the assessment year 1996-97, it had declared a total income of Rs. 1,51,000 and claimed deduction of Rs. 80,12,786 under Section 80HHC of the, Act. The Assessing Officer found that the sales effected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Although the Revenue attempted to canvass against the view by seeking references under Sections 256(1) and (2) of the Act, the attempt failed. There was no further challenge to the settled consistent judicial view taken on the issue. It was also pointed out that the judgment of the Allahabad High Court in Ram Babu's case [1996] 222 ITR 606, had been challenged by the Revenue before this court, but the special leave petition, was summarily dismissed. In view of this position, the Tribunal felt that consistency of the judicial decision should be respected and followed. 5. There is no dispute between the parties that the transactions of counter sales effected by the respondent involved customs clearance within the meaning of Explanation ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether it is genuine or not will be verified by the Assessing Officer on the basis of the aforesaid three judgments. The issues are answered accordingly. The appeal is accordingly disposed of." 5. In that view of the matter, in so far as in appeal No.145/2009 & 146/2009, the issue Nos. (i) and (ii) are answered in favour of the assessee and against the department and the issue no.(iii) is answered in favour of the department and against the assessee. In so far as appeal No.167/2009, the issues are answered in favour of the department and against the assessee. The matter is remitted back to the Assessing Officer to decide issue No.(iii) in appeal No.145/2009 & 146/2009 and all the issues in appeal No.167/2009, afresh in view of the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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