TMI Blog2002 (9) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... cation is maintainable under section 264 of the Act. We direct the Commissioner to decide the issue of law which he has framed in impugned order viz., "Whether export incentives received in subsequent assessment years can be allowed under section 80HHC even though not shown as income for the relevant year in view of the rectification application subsequently filed supported by the auditors report". This issue needs to be decided by the Commissioner under section 264 of the Act. - we set aside the orders of the Commissioner and we remit the matter back - - - - - Dated:- 4-9-2002 - Judge(s) : S. H. KAPADIA., J. P. DEVADHAR. JUDGMENT Rule. Returnable forthwith. The respondents waive service. By consent, the petition is taken up for fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer rightly disallowed the petitioner's claim on the ground that during the assessment year 1996-97, there were no export sales and, therefore, the petitioner was not entitled to claim deduction of Rs. 2,04,832. Being aggrieved by the said order, the assessee went in appeal to the first appellate authority, who by its order dated February 2, 2000, confirmed the order passed by the Assessing Officer for the assessment year 1996-97. The assessee has accepted the validity of the order. Hence, the petitioner-assessee filed a rectification application under section 154 of the Act on December 7, 1998, with specific prayer that the incentive pertained to the earlier assessment year 1995-96 and the claim under section 80HHC be granted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer had passed an assessment order under section 143(1)(a) accepting the claim of deduction under section 80HHC for Rs. 3, 40,113 and, therefore, rectification did not arise. He further held that the claim of deduction under section 80HHC cannot be considered unless the assessee had included the amount in the income for the said year and as the assessee had not taken export incentives in its income for the assessment year 1995-96, it cannot be allowed by way of rectification. He has further held that the assessee cannot seek relief for the assessment year 1995-96 on the basis of application for rectification for the assessment year 1996-97. Under section 264 of the Income-tax Act, the Commissioner may, on an application by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer had passed an order under section 143(1)(a) accepting the returns filed by the assessee but, in those returns the assessee could not have claimed the full deduction because the above incentive was received in subsequent assessment year 1996-97 when there were no export sales. The Commissioner has correctly framed an issue. However, he has rejected the revision application on extraneous grounds. We are of the view that the revision application is maintainable under section 264 of the Act. We direct the Commissioner to decide the issue of law which he has framed in para. 4 of the impugned order (exhibit G), dated October 19, 2000, viz., "Whether export incentives received in subsequent assessment years can be allowed under section 80H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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