2009 (5) TMI 9 - HC - Income Tax

Petitioner sought extension of time to bring in foreign exchange - non-remittance of the amount to India if extension of work was part of the same project, which the petitioner was to complete as per original contract and not separate and independent contract, the reasons given by the petitioner for non-remittance of complete amount of foreign exchange within six months, there could be considered as circumstances due to which it was beyond control of the petitioner to bring the foreign exchange within time CIT order of rejecting the prayer for extension of time u/s 80HHB(3) is set aside

Issues Involved:
1. Compliance with Section 80HHB(3)(iii) of the Income Tax Act.
2. Validity of the petitioner's request for an extension of time to remit foreign exchange.
3. Interpretation of procedural requirements for extension requests under Section 80HHB.
4. Examination of the reasons for delay in remittance of foreign exchange.
5. The legal position on making extension requests post the expiry of the specified period.

Detailed Analysis:

1. Compliance with Section 80HHB(3)(iii) of the Income Tax Act:
The petitioner entered into a contract with a foreign company for providing services related to the erection and commissioning of a plant. As per Section 80HHB(3)(iii), the petitioner was required to bring back 50% of the profits and gains in convertible foreign exchange into India within six months from the end of the financial year to avail of tax deductions. The petitioner failed to remit the entire required amount within the stipulated period, leading to a deficit of Rs.20,64,184/-.

2. Validity of the petitioner's request for an extension of time to remit foreign exchange:
The petitioner sought an extension of time through letters to the Commissioner of Income Tax after filing the tax returns. The Commissioner rejected the application, stating that the petitioner did not prove that the delay was due to reasons beyond its control. The court examined whether the petitioner's reasons for the delay were valid and beyond their control.

3. Interpretation of procedural requirements for extension requests under Section 80HHB:
The court highlighted that Section 80HHB allows for an extension of the six-month period if the Commissioner is satisfied that the delay was due to reasons beyond the control of the assessee. The court referred to precedents, including the Delhi High Court's decision in Azad Tobacco Factory (P) Ltd. and the Supreme Court's interpretation in CIT v. Ajanta Electricals, to determine whether the extension request could be made post the expiry of the specified period.

4. Examination of the reasons for delay in remittance of foreign exchange:
The petitioner argued that additional work under the same contract required funds to be retained outside India, making it impossible to remit the foreign exchange within the specified period without jeopardizing the completion of the project. The court noted that the petitioner had informed the Reserve Bank of India and the Commissioner of Income Tax about the contract extension and the financial requirements for the additional work.

5. The legal position on making extension requests post the expiry of the specified period:
The court concluded that the application for an extension could be made after the expiry of the six-month period. It emphasized that the right to seek an extension remains valid if the delay was due to reasons beyond the control of the assessee. The court criticized the Commissioner for not considering the petitioner's reasons and for not examining all relevant documents before rejecting the extension request.

Conclusion:
The court quashed the Commissioner's order rejecting the extension request and remanded the matter back for reconsideration. The Commissioner was directed to re-examine the application, allowing the petitioner to produce relevant documents, and to decide the matter in light of the court's observations. The court emphasized the importance of a fair and thorough examination of the petitioner's reasons for the delay in remittance.

← Previous Next →