TMI Blog2017 (5) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal. - D.B. Income Tax Appeal No. 145/2009, 146/2009, 167/2009, - - - Dated:- 10-5-2017 - MR. K.S. JHAVERI MR. VIJAY KUMAR VYAS JJ. For Appellant(s): Mr. Anuroop Singhi For Respondent(s): Mr. Aditya Bohra on behalf of Mr. Gunjan Pathak Judgment Per Jhaveri, J. 1. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeals filed by the department and allowed the appeals and the cross objections of the assessee. 2. This Court while admitting the appeal No.145/2009 on 22.04.2009 has framed the following substantial questions of law: (i) Whether on the facts and circumstances of the case, the Tribunal was justified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deleting the addition of ₹ 1,43,06,011/- made by the Assessing Officer on the ground of unverifiable purchases and sustained by the CIT(A) to the extent of ₹ 35,76,603/- even when the Tribunal itself has held that the purchases shown by the assessee are unverifiable? 2.2. This Court while admitting the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace- (2003) 259 ITR 0684, which reads as under: 1. The appeal is directed against the judgment of the Jaipur Bench of the Rajasthan High Court (see [2001] 248 ITR 69 ) dismissing the appeal under Section 260A of the Income-tax Act, 1961 (for short, the Act ), carried by the Revenue against the order of the Income-tax Tribunal dismissing its appeal. 2. Section 80HHC of the Act permits certain deductions to be made from the profits earned out of the business of export of goods. There is, however, an Explanation (aa) added thereto, which reads as under : '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are cumulatively fulfilled, viz., (a) it is a transaction by way of sale or otherwise in a shop, emporium or establishment situate in India, and (b) that it does not involve clearance in any customs station as defined in the Customs Act. This view of the Allahabad High Court had been consistently followed by several other High Courts, including the Rajasthan High Court itself in ITO v. Vaibhav Textiles [2002] 258 ITR 346 . Reliance was placed on a number of orders of the Income-tax Tribunal following the view taken in Ram Babu's case, consistently and the law laid down therein. In fact, even in the case of the respondent-assessee, for the previous assessment years, the Tribunal had taken the same view. Although the Revenue attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in the case of Vijay Proteins Ltd. Vs. Commissioner of Income Tax, Special Leave to Appeal (C) No.8956/2015 decided on 06.04.2015 whereby the Supreme Court has dismissed the SLP and confirmed the order dated 09.12.2014 passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax (2009) 316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy. C.I.T., Tax Appeal No.240/2003 decided on 20.06.2016 , the parties are bound by the principle of law pronounced in the aforesaid three judgments. 4. We remit back the case to the Assessing Officer for deciding afresh on the factual matrix. The authority will accept the law but the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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