Ispat Projects Ltd. v. C. I. T., W. B.-I, Kolkata
[Citation -2020-LL-0515-1]

Citation 2020-LL-0515-1
Appellant Name Ispat Projects Ltd.
Respondent Name C. I. T., W. B.-I, Kolkata
Court HIGH COURT OF CALCUTTA
Relevant Act Income-tax
Date of Order 15/05/2020
Assessment Year 1996-97
Judgment View Judgment
Keyword Tags convertible foreign exchange • exchange rate fluctuation • exchange rate difference • supporting manufacturer • inextricably linked • computing deduction • extension of time • deferred payment • foreign currency • business income • export turnover • foreign party • satisfaction • export sale • time limit
Bot Summary: 7) On 15th March, 1999 the assessee filed an application under sub-section of Section 80-HHC of the said Act before the Commissioner of Income 4 Tax, West Bengal, requesting for permission in terms of the said provision to enable the assessee to claim the said amount of Rs. 1,13,77,292/- as export turn over for the assessment years 1993-94 and 1994-95 as an alternative to the said amount being treated as export turnover for the assessment year 1996-97. In his view, after receipt of the full amount from Allahabad Bank in Indian rupees in respect of the export to the Indonesian importer, the matter relating to that 7 particular export came to an end and any income arising thereafter which could not be anticipated earlier, cannot be treated as income from such export or related to such export sale. Assessment years 1993-94 and 1994-95, by observing that if the amount did not clarify as export turnover in one year, it could not be treated as export turnover in any other year since the conditions remained the same in all the years. The Assessing Officer has himself noted that the assessee had made the exports during the financial years 1992-93 and 1993-94 on deferred payment terms with the permission of the RBI. According to the payment terms that RBI approved, a substantial part of the sale proceeds was to be received after the expiry of six months from the end of the previous year of export. Merely because an amount is received in a year subsequent to the year of export by way of exchange rate difference, it does not necessarily always follow that the same is not relatable to the exports made. On a meaningful reading of the relevant provisions of the said Act, we are of the opinion that income arising from export taking place not necessarily in the previous year relevant to the assessment year but also exports taking place in earlier years could qualify for deduction under Section 80-HHC provided of course the foreign exchange came into India within the time period specified in the statute. 31) On an overall consideration of the facts and circumstances of the case, we are of the view that extra realization made in rupees for export sale proceeds in foreign exchange due to adverse exchange rate of rupee would be part of the export turnover in the year of receipt subject to the foreign exchange coming into the country within the statutorily prescribed time period.


IN HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (INCOME TAX) ORIGINAL SIDE Present : HON BLE CHIEF JUSTICE THOTTATHIL B. RADHAKRISHNAN AND HON BLE JUSTICE ARIJIT BANERJEE ITA 32 OF 2003 ISPAT PROJECTS LTD. Versus C. I. T., W. B.-I, KOLKATA For Appellant : Mr. J.P. Khaitan, Sr. Advocate Ms. Swapna Das, Advocate Mr. Agnibesh Sengupta, Advocate Mr. Siddharth Das, Advocate For Respondent : Mr. Debasish Chowdhury, Advocate Heard on : 24.12.2019 Judgment on : 15.05.2020 Arijit Banerjee, J. : 1) This Income Tax Appeal is directed against order dated 26th November, 2002 passed by Income Tax Appellate Tribunal, E Bench, Calcutta, dismissing assessee s appeal preferred against order of Commissioner of Income Tax (Appeal) (In short CIT ) dated 25th November, 2 1999 for assessment year 1996-97. By said order, CIT had dismissed assessee s appeal against Assessment Order dated 26th March, 1999 passed by Joint Commissioner of Income Tax, Special Range - 7, Calcutta, for assessment year 1996-97. 2) coordinate Bench of this Court by its order dated 25th July, 2003, admitted instant appeal for being heard on following substantial questions of law:- a) Whether extra realization made in rupees for export sale proceeds in foreign exchange due to adverse exchange rate of rupee would be part of export turnover in year of receipt? b) Whether export sale proceeds received in accordance with and in terms of contract and with approval of Reserve Bank of India could be ignored for purpose of relief under Section 80-HHC of Act? 3) undisputed facts of this case are that during financial year 1992- 1993, appellant/assessee received order from P.T. Ispat Indo, Indonesian company for export of transformers, switch gears, conveyor rolls, etc. for total CIF value of USD 29,40,000. terms of payment by Indonesian company to assesse was that advance payment of 10 per cent of total value would be made ( which came to Rs. 84,81,600/-) and balance 90 per cent would be paid in twelve (12) equal half yearly instalments commencing two years from mean date of shipment. Reserve Bank of India (in short RBI ) granted approval in respect of such export on deferred payment terms. assessee obtained finance from Allahabad Bank against 3 outstanding dues of 90 per cent of contract value. Allahabad Bank was in turn refinanced by Export-Import Bank of India. 4) At time when assessee raised export invoice for USD 29,40,400 exchange rate was Rs. 28.849 to dollar. Accordingly, assessee entered in its books of accounts Indian rupee equivalent of Rs. 8,48,16,060/-. 5) Indonesian company paid 10 per cent advance and, thereafter, two half yearly installments on or about 20th December, 1994 and 3rd July, 1995. Subsequently, foreign customer wanted to pay off balance amount at one go. RBI permitted Allahabad Bank to accept balance amount in one installment. 6) As on dates when two half yearly installments and then entire balance amount were paid by Indonesian company, dollar was dearer vis- - vis Indian rupee compared to what it was as on date of raising of invoice by assessee. Due to such exchange rate fluctuations, Allahabad Bank received excess sum in Indian rupee amounting to Rs. 1,13,77,292/-. This amount was passed on by Allahabad Bank to assessee during previous year relevant to assessment year 1996-97. assessee treated said amount as part of its export turn over for purpose of computing deduction under Section 80-HHC of Income Tax Act (In short said Act ), for assessment year 1996-97. 7) On 15th March, 1999 assessee filed application under sub-section (2) (a) of Section 80-HHC of said Act before Commissioner of Income 4 Tax, West Bengal, requesting for permission in terms of said provision to enable assessee to claim said amount of Rs. 1,13,77,292/- as export turn over for assessment years 1993-94 and 1994-95 as alternative to said amount being treated as export turnover for assessment year 1996-97. Before any decision was given on such application, Assessing Officer, on 26th March, 1999, completed assessment for year 1996-97. Assessing Officer rejected assessee s claim for deduction under Section 80- HHC of said Act by treating said amount of Rs. 1,13,77,292/- as export turn over. He treated said sum as business income of assessee. 8) first appeal from Assessing Officer s order was dismissed by CIT. second appeal from order of CIT was dismissed by learned Tribunal. Hence, this appeal under Section 260A of said Act. 9) Before we proceed further, it may be helpful to note relevant portions of Section 80-HHC of said Act. Sub-section 1 of Section 80-HHC of said Act in so far as same is material for our purpose, provides as follows: (1) Where assessee, being Indian company or person (other than company) resident in India, is engaged in business of export out of India of any goods or merchandise to which this section applies, there shall, in accordance with and subject to provisions of this section, be allowed, in computing total income of assessee, [a deduction to extent of profits, referred to in 5 sub-section (1-B),] derived by assessee from export of such goods or merchandise: 10) Clause (a) of sub-section (2) of Section 80-HHC said Act was amended by Finance Act, 1999 with effect from June 1, 1999. Prior to such amendment, said clause read as under: (2)(a) This section applies to all goods or merchandise, other than those specified in clause (b), if sale proceeds of such goods or merchandise exported out of India are received in, or brought into, India by assessee (other than supporting manufacturer) in convertible foreign exchange, within period of six months from end of previous year or, where Chief Commissioner or Commissioner is satisfied (for reasons to be rocorded in writing) that assessee is, for reasons beyond his control, unable to do so within said period of six months, within such further period as Chief Commissioner or Commissioner may allow in this behalf. 11) After amendment, clause (a) of sub-section (2) reads as under: (2)(a) This section applies to all goods or merchandise, other than those specified in clause (b), if sale proceeds of such goods or merchandise exported out of India are received in, or brought into, India by assessee (other than supporting manufacturer in convertible foreign 6 exchange, within period of six months from end of previous year or, within such further period as competent authority may allow in this behalf. Explanation.- For purposes of this clause, expression competent authority means Reserve Bank of India or such other authority as is authorised under any law for time being in force for regulating payments and dealings in foreign exchange. 12) Clause (b) of Explanation to Section 80 HHC defines export turnover as follows: (b) export turnover means sale proceeds [received in, or brought into, India] by assessee in convertible foreign exchange [in accordance with clause (a) of sub-section (2)] of any goods or merchandise to which this section applies and which are exported out of India, but does not include freight or insurance attributable to transport of goods or merchandise beyond customs station as defined in Customs Act, 1962 (52 of 1962) 13) Assessing Officer was of opinion that sum of Rs. 1,13,77,292/- cannot be treated as export turnover as defined in Explanation (b) to Section 80-HHC read with sub-section (2)(a) thereof. In his view, after receipt of full amount from Allahabad Bank in Indian rupees in respect of export to Indonesian importer, matter relating to that 7 particular export came to end and any income arising thereafter which could not be anticipated earlier, cannot be treated as income from such export or related to such export sale. Being of such view, he held that any application for permission from Commissioner of Income Tax/Chief Commissioner of Income Tax with retrospective effect cannot revalidate and/or legitimise assessee s claim. Assessing Officer also rejected alternative submission of assessee that amount in question should be treated as export turnover for years of export viz. assessment years 1993-94 and 1994-95. He held that if amount did not qualify as export turnover in one year, it could not be treated as export turnover in any other year since statutory provisions were same. 14) On appeal, Commissioner of Income Tax (Appeals) held that assessee cannot claim relief under Section 80-HHC in assessment year 1996-97 because goods in question were not exported during previous year relevant to said assessment year. He observed that sale proceeds had to be brought into India within period of six months from end of previous year in which export took place. He held that question of bringing in foreign exchange within extended period did not arise because export was concluded not during previous year 1995-96 relevant to assessment year 1996-97 but in earlier year by, i.e., January, 1994. With regard to assessee s alternative case for treatment of said receipt as export turnover for assessment years 1993-94 and 1994-95, Commissioner of Income Tax (Appeals) held that money was brought into 8 India long after end of previous year relevant to assessment year 1994-95 and such belated receipt had not been authorised by Commissioner/Chief Commissioner. Accordingly, CIT dismissed appeal. 15) On further appeal by assessee, learned Tribunal upheld finding of CIT that assessee cannot avail of relief under Section 80-HHC because goods were not exported during previous year relevant to assessment year 1996-97. Tribunal agreed with CIT that question of bringing in foreign exchange within extended period did not arise because export was concluded not during previous year 1995-96 relevant to assessment year 1996-97 but in earlier year, i.e., by January, 1994. Tribunal also rejected alternative contention of assessee that amount in question should be treated as export turnover for years of export viz. assessment years 1993-94 and 1994-95, by observing that if amount did not clarify as export turnover in one year, it could not be treated as export turnover in any other year since conditions remained same in all years. 16) Appearing for appellant/assessee, Mr. J.P. Khaitan, learned Senior Advocate submitted that time frame specified in sub-section (2)(a) of Section 80-HHC for receiving in India or bringing into India foreign exchange could be extended by Commissioner/Chief Commissioner prior to June 1, 1999 if sufficient reason was shown by assessee for not being able to bring into India sale proceeds within stipulated time period. From June 1, 1999, Authority which was vested with power to extend such 9 time period was RBI or such other authority as is authorised under any law for time being in force for regulating payments and dealings in foreign exchange. Learned Counsel submitted that it is indisputable that sum of Rs. 1,13,77,292/- was realised in respect of exports completed by January, 1994. Assessing Officer has himself noted that assessee had made exports during financial years 1992-93 and 1993-94 on deferred payment terms with permission of RBI. According to payment terms that RBI approved, substantial part of sale proceeds was to be received after expiry of six months from end of previous year of export. However, with subsequent permission of RBI, sale proceeds were brought into India much earlier than time provided in original payment terms. 17) Mr. Khaitan then submitted that it cannot be disputed that sum of Rs. 1,13,77,292/- is part and parcel of sale proceeds received in India by assessee in convertible foreign exchange. assessee had raised its invoice in US dollars and what it received from foreign customer was same amount of dollars as billed by it. To show export in its books of accounts, assessee converted dollars into Indian rupees at exchange rate prevalent at time of export. By time sale proceeds were realised, exchange rate went up and consequently, same amount of US dollars yielded larger amount in Indian currency. assessee could know about such higher differential amount only when it actually received sale proceeds. Before such receipt, assessee could not have known or accounted for it in its books of accounts. 10 18) It was further submitted that character of such export sale proceeds cannot become different because corresponding exports were made in earlier year. Export turnover by definition includes export sale proceeds of goods received in or brought into India in accordance with clause (a) of sub- section (2) of section 80-HHC of said Act. According to sub-section (2)(a), such sale proceeds can be received after close of year of export within six months or even thereafter. Hence, factum of receipt of sale proceeds after six months of year of export or longer cannot constitute any ground to exclude such proceeds from purview of Section 80-HHC. In support of his submission that said sum of Rs. 1,13,77,292/- is part and parcel of assessee s export turnover irrespective of year of realisation, Mr. Khaitan relied on following decisions: a) (2011) 330 ITR 57 (Cal), Raghunath Exports (P) Ltd. v. Commissioner of Income Tax b) (2006) 282 ITR 144 (Guj), Commissioner of Income-Tax v. Amba Impex c) (2010) 362 ITR 455 (Bom), Commissioner of Income-Tax v. Amber Exports (India) 19) Learned Senior Counsel finally submitted that authorities below excluded sum of Rs. 1,13,77,292/- from export turnover on ground that export was made not during previous year 1995-96 relevant to assessment year 1996-97 and not on ground that assessee did not have permission for bringing in sale proceeds after expiry of six months from end of previous year of expiry. fact that assessee had made 11 application before Commissioner for such permission is noted in order of Tribunal. Such application of assessee was not dealt with by Commissioner till date of Tribunal s decision, i.e., March 15, 1999 nor thereafter till June 1, 1999. As such, in view of amendment in law, assessee applied to RBI for permission. When RBI also did not act upon assessee s application, assessee moved this court by way of WP No. 668 of 2005. Pursuant to direction of this Court, RBI dealt with assessee s application and by order dated June 11, 2005 held that no further extension was required by assessee since RBI had approved original deferred payment terms as well as subsequent preponement of payment of balance in lumpsum. Mr. Khaitan submitted that if this court is of view that aspect of permission needs to be gone into, such aspet may be remanded to Tribunal for examination and decision after taking into consideration subsequent developments. 20) Appearing for Department, Mr. Debasish Chowdhury, learned Advocate defended decisions of authorities below. He submitted that in order to come under category of export turnover, transaction has to pass through tests laid down under provisions of Section 80-HHC of said Act. All conditions mentioned in said section are required to be fulfilled. Partial compliance of conditions will not be sufficient for particular receipt to be eligible to be treated as export turnover. In present case, all conditions have not been fulfilled. If conditions are not fulfilled for one 12 assessment year, receipt in question cannot qualify as export turnover in another year as conditions remain same in both years. 21) Learned Counsel submitted that assessee received entire balance amount from Allahabad Bank in Indian currency. Once amount receivable in connection with transaction is received in full satisfaction, issue relating to said transaction stands closed. Any income arising thereafter, which neither resulted from agreement nor could be anticipated, could not be treated as income from said transaction. He further submitted that fact that income in question could not be visualised earlier shows that it is income not from export transaction in question. 22) Mr. Chowdhury further submitted that hypothetically speaking, if Allahabad Bank had made payment to assessee in dollars, assessee would have got same amount in Indian rupees as it received in this case as amount would have remained same after conversion. If bank thereafter received dollar payment from foreign party and there was fluctuation in exchange rate, profit resulting from such fluctuation would have been income of bank and in that case, income could not be said to have been related to exports made by assessee, although, income was generated out of same exports. He submitted that reason for giving this example is to emphasize fact that after receipt of full amount by assessee in respect of export in question, matter relating to that particular export stood closed and any income arising thereafter could not reopen issue of that export. income arising after such receipt 13 would, therefore, be income of business and could not, by any stretch of imagination, be said to be part of export turnover. 23) As regards decisions relied upon by learned Counsel for appellant, Mr. Chowdhury, learned Advocate, submitted that said decisions are not applicable in instant case as same are distinguishable on facts. Every case depends on its own facts. Even slightest change in factual scenario alters entire conspectus of matter and makes one case distinguishable from another. Court s View: 24) We have given our anxious consideration to rival contentions of parties. Two questions arise for determination. Firstly, whether or not extra realization in terms of rupees for export sale due to adverse exchange rate of rupee would form part of export turnover of assessee? Secondly, if answer to first question is in affirmative, whether benefit contemplated under Section 80-HHC of said Act could be denied to assessee? 25) It is not in dispute that appellant exported goods to Indonesian purchaser. Such export was completed by January, 1994. payment that was to be made by foreign purchaser was agreed to be in installments. This arrangement had sanction of RBI. payment terms contemplated payment in staggered manner during period of time which was much beyond six months from date of export or from end of previous year. appellant received rupees equivalent of invoice amount which was 14 in US dollars, from Allahabad Bank. In other words, Allahabad Bank financed export undertaken by appellant. Allahabad Bank was in turn refinanced by Export-Import Bank. foreign purchaser paid first two installments on agreed dates. On those dates, US dollar was dearer vis- - vis Indian rupee which resulted in excess realization in terms of Indian rupee. This surplus was made over by Allahabad Bank to appellant. balance consideration amount for export was paid by foreign purchaser at one go after RBI granted permission to Allahabad Bank to receive balance at one go. As on date of payment of entire balance amount by foreign purchaser to Allahabad Bank, exchange rate had undergone considerable change and Indian rupee had fallen substantially vis- -vis US dollar. This again resulted in excess realization in terms of India rupees. surplus was made over by Allahabad Bank to appellant. 26) It cannot possibly be disputed that inflow of foreign exchange in question into India resulted from export that appellant made. This excess realization is inextricably linked to export made by assessee. Had export not been made, foreign exchange would not have come into India and no question of realization or excess realization in terms of Indian rupees would have arisen. Hence, in principle, such excess realization should be treated as part of export turnover of assessee. In this connection, it may be noted that coordinate Bench of this Court, in case of Raghunath Export (P) Ltd. v. Commissioner of Income-Tax supra held as follows: 15 We have considered contentions of learned advocates for parties and checked records. It is not disputed that tea was exported and payment was received in foreign currency and it is also admitted that when realization of export was made there has been fluctuation of foreign currency, as such, there was surplus realization in terms of Indian currency. question is whether aforesaid surplus realization of Rs. 10,61,326 can be treated to be part of export turnover or not. In our view, going by definition of export turnover, aforesaid amount was realized in connection with export followed by payment of price by foreign buyer. Unless there has been export aforesaid surplus would not have been realized. Hence, this surplus realization is certainly relatable to export. Therefore, we hold that this is export turnover. Here, payment was made in foreign currency, not in terms of Indian currency. According to us, consideration of export turnover has to be considered in context of mode of payment being made by foreign buyers, not in mode of convertible exchange. 16 However, Legislature in its wisdom has cleared that in case of convertible foreign exchange, time limit of six months has been prescribed. Therefore, this aspect cannot be ignored. Factually, neither Commissioner of Income- tax (Appeals) nor Tribunal have gone into question whether export turnover was realized beyond six months or not. Hence, we do not think that this question should be decided by us as no such point has been formulated by this court, nor any cross-appeal has been filed in this case. We are of view that this amount received in year or subsequent year by virtue of exchange rate difference cannot be said to be unrelatable to export made. same view has also been taken by Gujarat High Court in case of Amba Impex [2006] 282 ITR 144 and it has been held almost on identical fact that As corollary, by time such sale proceeds are received within prescribed time, by virtue of exchange rate difference there might be situation where larger amount is received than amount as reflected in shipping bill. Hence, merely because amount is received in year subsequent to year of export by way of exchange rate difference, it does not necessarily always follow that same is not relatable to exports made. 17 27) In coming to aforesaid decision, Division Bench referred to and followed decision of Gujarat High Court in case of Commissioner of Income-Tax v. Amba Impex supra. In that case, Gujarat High Court held as follows: Under sub-section (2) of section 80HHC of Act, sale proceeds of goods or merchandise exported out of India and received in convertible foreign exchange become entitled to deduction subject to fulfilment of other requisite conditions. Clause (a) of sub-section (2) of section 80HHC of Act provides that such sale proceeds have to be received in convertible foreign exchange within period of six months from end of previous year or, within such further priod as competent authority may allow in this behalf. Thus, plain reading of provision makes it clear that once competent authority has extended time, in case where it is necessary, or, where sale proceeds have been received within period of six months from end of previous year, such sale proceeds are directly relatable to exports made and no further inquiry is necessary. Therefore, entire controversy as to whether such receipt amounts to any other receipt stipulated in Explanation (baa)(1) need not be taken up for consideration. Once Legislature has provided for treating receipt 18 within period of six months after end of previous year, or within further extended period, as sale proceeds relatable exports, it would not be open to Revenue to raise such controversy. Legislature in its wisdom has taken into consideration fact that in case of exports made, sale proceeds are not necessarily realisable immediately within accounting period in which exports have been made. As corollary, by time such sale proceeds are received within prescribed time, by virtue of exchange rate difference, there might be situation where larger amount is received than amount as reflected in shipping bill. Hence, merely because amount is received in year subsequent to year of export by way of exchange rate difference, it does not necessarily always follow that same is not relatable to exports made. 28) decision of Gujarat High Court in Amba Impex was followed by Division Bench of Bombay High Court in Commissioner of Income-Tax v. Amber Exports (India) supra. 29) However, going by definition of export turnover in said Act, before amount received by exporter can be treated as part of export turnover, it must also be shown that convertible foreign exchange was received in or brought into India within period of six months from end of 19 previous year or within such extended period as Chief Commissioner/Commissioner (now RBI) may allow. In present case, it is not in dispute that foreign exchange was received in India beyond period of six months stipulated in sub-section (2)(a) of Section 80-HHC. However, this was in accordance with permission granted by RBI. Prior to completion of assessment of appellant for assessment year 1996- 97, appellant had made application before Commissioner of Income Tax, West Bengal I, requesting for permission to enable appellant to claim amount of excess realization due to exchange rate fluctuation as export turnover. It is also not in dispute that such application of appellant was not disposed of by Commissioner at any point of time. view of Assessing Officer was that after receiving full amount from Allahabad Bank in Indian rupees, chapter stood closed and any subsequent income which could not be visualized at time of export cannot be said to be related to that particular export. This view was upheld both by CIT and learned Tribunal. We are unable to agree with this view. It was not possible for appellant to know as on date of export as to manner in which exchange rate may fluctuate in future. subsequent excess realization in Indian rupees due to adverse exchange rate of rupee cannot be said to be unrelatable to particular export. Afterall, object of incorporating Section 80-HHC in said Act is clearly to grant incentive to exporters who earn valuable foreign exchange for our country. exemption contemplated under said section for purpose of calculating total income, is obviously to encourage 20 exports resulting in flow of foreign exchange into country. Such piece of legislation, in our opinion, must be interpreted as liberally as possible in favour of exporter/assessee. It is trite law that if particular taxing provision is liable to two interpretations, one favouring assessee and other favouring department, former interpretation ought to be accepted. CIT and learned Tribunal rejected assessee s claim on basis that export was concluded not during previous year 1995-96 relevant to assessment year 1996-97 and, therefore, question of bringing in foreign exchange within extended period did not arise. We are unable to agree with this view. On meaningful reading of relevant provisions of said Act, we are of opinion that income arising from export taking place not necessarily in previous year relevant to assessment year but also exports taking place in earlier years could qualify for deduction under Section 80-HHC provided of course foreign exchange came into India within time period specified in statute. In present case, Commissioner never dealt with appellant s application for extension of time period so as to enable appellant to treat receipt in question as part of its export turnover. 30) It was submitted on behalf of appellant that in view of amendment of clause (a) of sub-section (2) of Section 80-HHC and in view of RBI becoming competent authority with effect from June 1, 1999 for purpose of allowing/disallowing extension of time to bring in foreign exchange, appellant made application to RBI. By order dated 11th June, 2005, 21 RBI has held that no further extension is required as RBI had approved original deferred payment terms as well as subsequent preponement of payment in lumpsum. However, copy of such order has not been brought on record. 31) On overall consideration of facts and circumstances of case, we are of view that extra realization made in rupees for export sale proceeds in foreign exchange due to adverse exchange rate of rupee would be part of export turnover in year of receipt subject to foreign exchange coming into country within statutorily prescribed time period. We are also of view that export sale proceeds received in accordance with and in terms of export contract and with approval of RBI could not be ignored for purpose of relief under Section 80-HHC of said Act. questions of law on which instant appeal was admitted are answered accordingly. 32) We have already recorded our opinion that grounds on which CIT and learned Tribunal rejected appellant s claim are not tenable in law. With regard to appellant s alternative contention for treatment of amount in question as export turnover for assessment year 1993-94 and 1994-95, both CIT and learned Tribunal held that receipt was brought into India long after end of previous year relevant to assessment year 1994-95 and such belated receipt had not been authorized by Commissioner/Chief Commissioner. fact remains that appellant s application before Commissioner was never taken up for consideration and disposal. 22 33) In aforesaid factual matrix, in our opinion, ends of justice will be served if matter is remanded to learned Tribunal for fresh consideration taking into account subsequent development including order of RBI stated to have been passed on June 11, 2005 and also in light of observations made in this judgment. 34) In result, appeal succeeds. order under appeal is set aside. matter is remanded to learned Tribunal for fresh consideration and decision after giving opportunity of hearing to both sides. Needless to say, both sides will be at liberty to file further documents before learned Tribunal as they may be advised. Since this is fairly old matter, it is desirable that learned Tribunal gives some precedence to this matter and decides matter as early as business of learned Tribunal may permit. 35) ITA 32 of 2003 is accordingly disposed of. 36) Urgent Xerox certified copy of order be supplied to parties upon completion of all formalities. (Arijit Banerjee, J.) (Thottathil B. Radhakrishnan, C.J.) Ispat Projects Ltd. v. C. I. T., W. B.-I, Kolkata
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