TMI Blog1993 (12) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ld was recorded on tapes/discs, which were produced before us as sample and to show that this had considerable weight and mass which occupied sufficient space and thus tangible like any other goods. 5. Section 80HHC(1) of the Act runs as under: (relevant portion extracted). "80HHC(1). Where an assessee, being an Indian company or a person (other than a company) resident in India, is engaged in the business of export out of India of any goods or merchandise to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of the profits derived by the assessee from the export of such goods or merchandise." 6. The argument of the Assessing Officer in repelling the assessee's plea that the software exported by them fell within the purview of section 80HHC emanates from the aid taken by him of another provision is sub-section (1) of section 80HHE introduced by the Finance (No. 2) Act, 1991. The relevant portion of this statutory provision reads as under : "80HHE(1). Where an assessee, being an Indian company or a person (other than a company) resident in India is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... primary controversy for our adjudication rests on the view taken by us as to whether or not section 80HHE which had not seen the sunshine during, the relevant accounting period could be made the basis for resolving the dispute appearing for that accounting period. 11. One of the fundamental rules of interpretation is that in a taxing statute there is no room for any intendment and one is required merely to look at what is clearly said. Nothing is to be read in, nothing implied. The Supreme Court in CIT v. Shahzada Nand Sons [1966] 60 ITR 392 and CIT v. Vadilal Lallubhai [1972] 86 ITR 2 has held that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions entertained by the interpreting authority as to what was just or expedient. Further, in the case of a reasonable doubt, the construction most beneficial to the subject should be adopted. In certain other cases the Court held that it was impermissible to read in a taxing provision any words which are not there and vice versa, i.e., exclude words which are there. No outside consideration could be called in aid to find out the legislative intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of a provision which was wholly non-existent at the relevant time. Referring to the Supreme Court decision in the case of CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41 and the citation by the Court as to the observations in the case of Kemp Brandy Syndicate v. Inland Revenue Commission, by His Lordship Sterndale M.R. is similarly not appropriately conceived as it accords permissiveness to the use of subsequent legislation only where the previous legislation is ambiguous. 20. Putting a question to ourselves as to whether the language of section 80HHC is ambiguous our answer on a circumspect consideration is an emphatic 'no'. An answer different than this will pare down and decimate the legislative intent which as seen by us on the basis of law laid down by the highest Court is impermissible. 21. On a due consideration of the matter, we find that if dehors the plain and precise language of section 80HHC, we permit importation of section 80HHE, the later provision, it may result in an embarrassingly analogous situation. As to why, our answer is that if the later provision is allowed to be engrafted in the earlier law, it would mean that an assessment, appeal, reference Writ or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governs a particular issue and surely cannot be stretched to encompass a speech given by the mover of the Bill of the subsequent law, which, as held by us is of no relevance for the disposal of the present list. Secondly because of the crystal clear and unambiguous language of section 80HHE this provision of law did not contain any mischief therein which required to be remedied. 25. However even if the issue is examined from the revenue's point of view that the subsequent legislation would be looked into, it may be stated that quoting from a CBDT Circular bearing No. 621, dated 19-12-1991 para 34 of Explanatory Notes available at pages 7146-7182, 7164-65 in Volume 6 of the learned Author Chaturvedi Pithisaria, section 80HHE was inserted by Finance (No. 2) Act, 1991 for the following purpose: Finance (No. 2) Act, 1991 - Explanatory Notes on the Provisions relating to Direct Taxes. "Circular No. 621, dated 19-12-1991....... 34. With a view to providing fiscal incentive for promoting export of Computer software a new section 80HHE has been inserted in the Income-tax Act for providing tax concession similar to those available under section 80HHC of the Income-tax Act in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok into consideration the possibility of some overlapping in the two provisions, viz., section 80HHC and section 80HHE as is clear from sub-section 5 of section 80HHE reproduced below which will go to suggest that where a deduction was claimed by an assessee under section 80HHE, he will not be entitled to claim deduction in relation to such profits under any other provisions: "Section 80HHE sub-section 5: Where a deduction under this section is claimed and allowed in respect of profits of business referred to in sub-section 1 for any assessment year, no deduction shall be allowed in relation to such profits under any other provisions of this Act for the same or any other assessment year." All the above facts clearly go to point out that the provisions of sections 80HHC and 80HHE are independent of each other and they were brought on the statute book for serving different purposes. As already held by us section 80HHE would have to be given a plain meaning as there is absolutely no ambiguity in the language of the section. 29. As seen, section 80HHC grants deduction in respect of the export of "goods and merchandise". These words have not been defined by the statute. Undefine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icted to a sense analogous to the less general. We are supported in saying so by several decisions such as CIT v. A.P. Parukutty Mooppilamma [1984] 149 ITR 131 (Ker.), Kerala Co-operative Consumers' Federation Ltd. v. CIT [1988] 170 ITR 455 (Ker.) and CIT v. Kacker 171 ITR 129 (SC) (sic). 33. In the case in hand as already pointed out the term 'goods' is very general while the term merchandise less. Applying the aforesaid rule the term "merchandise" would also have to be understood in the same background, context and meaning as accorded to the word "goods". This conclusion is further fortified by the decision of the Supreme Court in the case of Scientific Engg. House (P.) Ltd. v. CIT [1986] 157 ITR 86. In that case the question arose whether documentation service comprised of drawings, designs, plans, processing data, etc., could be treated as "Book" and constitute "Plant" within the meaning of section 43(3) of the Act and whether depreciation was allowable on documentation service. It was held that the various documents such as drawings, designs, charts, plans, processing data and other literature included in documentation service, the supply whereof was undertaken by the foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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