2015 (3) TMI 715 - HC - Income Tax

Deduction u/s 80HHC on counter sales - whether ITAT as well as the CIT(A) was justified in allowing the deduction u/s 80 HHC when there is no finding to the effect that the goods were cleared at any of the custom station? - Held that - Apex Court in CIT vs. Silver & Arts Palace 2002 (12) TMI 12 - SUPREME Court has held that the counter sale to the foreign tourists against convertible foreign exchange in India, is eligible for deduction under section 80HHC of the Income Tax Act. The Apex Court has also approved the decision of the Allahabad High Court in the case of Ram Babu & sons vs. Union of India 1996 (5) TMI 61 - ALLAHABAD High Court . In the present case the assessee had produced the Sale To Foreign Tourists Voucher, which not only recorded the name and address of the customer (tourist), but also his/her passport number and the declaration given by him that the goods will not be gifted or sold in India. The goods sold at counter at the shop/emporium were sold to be taken out of the country, which necessarily involved clearance of baggage, by the customs authorites. There was no further proof, nor any document in proof of clearance of the goods at the Customs Station by the assessee is required. The declaration in the form of Sale To Foreign Tourist Voucher, for sale made against the convertible foreign exchange with the undertaking that the goods will not be gifted or sold in India, was sufficient proof for export out of India. Unless anything contrary was alleged and proved by the department, it was not necessary for the assessee to have produced the documents of clearance of goods sold by him to the foreign tourists at any Customs Station. The Explanation (aa) is not a rule of evidence, nor raises any presumption. It also does not require any proof of clearance at any Customs Station. The explanation is couched in double negative. It is a rule of exclusion and excludes only those transactions, which do not involve clearance at any Customs Station. It cannot be read in a manner, as suggested by learned counsel appearing for the department that a proof of customs clearance of baggage must be provided to establish the export of goods out of India for the purpose of deduction of profits on such sales under section 80HHC of the Income Tax Act. - Decided in favour of assessee.

Summary

Issues:
1. Interpretation of Section 80HHC of the Income Tax Act regarding deduction eligibility for counter sales to foreign tourists.
2. Requirement of proof of clearance at Customs Station for claiming exemption under Section 80HHC.

Analysis:
1. The appeal involved the interpretation of Section 80HHC of the Income Tax Act in the context of an assessee, a dealer of jewellery and handicrafts, making counter sales to foreign tourists. The Assessing Officer denied the deduction under Section 80HHC on the grounds that proof of clearance of goods at the Customs Station was not provided. The primary issue was whether the exemption could be allowed without such proof.

2. The High Court referred to the decision of the Apex Court in CIT vs. Silver & Arts Palace, which held that counter sales to foreign tourists against convertible foreign exchange in India are eligible for deduction under Section 80HHC. The court also cited various Rajasthan High Court decisions supporting this view, emphasizing that the requirement of clearance at a Customs Station was not a prerequisite for claiming the deduction under Section 80HHC.

3. The court analyzed the language of Explanation (aa) of sub-section (4C) of Section 80HHC, which excludes transactions not involving clearance at any Customs Station from the definition of "export out of India." The court noted that the Sale To Foreign Tourists Voucher provided by the assessee, recording customer details and declarations, was sufficient proof of export out of India. The court clarified that the explanation does not require proof of clearance at a Customs Station and is a rule of exclusion, not evidence.

4. The court rejected the argument by the Income Tax Department that proof of customs clearance was necessary for claiming the deduction under Section 80HHC. It held that the assessee's documentation and declarations were satisfactory evidence of export out of India, as supported by previous judgments, including that of the Supreme Court. The court ruled in favor of the assessee, dismissing the Income Tax Appeal.

In conclusion, the High Court upheld the eligibility of the assessee for deduction under Section 80HHC for counter sales to foreign tourists, emphasizing that the requirement of clearance at a Customs Station was not mandatory for claiming the exemption. The court's decision was based on the interpretation of relevant legal provisions and precedents, ensuring consistency with established principles in tax law.