9911796707
TMI Blog1979 (4) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... d these orders were cancelled body the AAC, A-Range, Madras by his consolidated appellate order dt. 20th June, 1977. Regarding the intervening asst. yr. 1973-74 the order under s. 104 was passed by the ITO on 8th Dec., 1977 and this order was cancelled by the Commissioner (Appeals-II) by his order dt. 23rd Aug., 1978. 2. The common issue involved in these appeals is whether the assessee is entitled to the exemption from the levy of additional income-tax under s. 104(1), by virtue of the provisions of s. 104(3) r/w the Central Government s relevant notifications made there under. For the sake of convenience we shall, to illustrate, take up first the assessment year 1972-73 (year ending 31st March, 1973). The assessee company exports Lignit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of the notification was to declare a particular class of assessee as exempt not with respect to a particular assessment year but for all those assessment years during which the conditions laid down in the notification were satisfied; that the notification only required that the activity of export should be in the course of the business, which was satisfied in the assessee s case as also the other requirements of the notification. The assessee submitted that under the relevant clause of the barter approval scheme under which import licences were granted by the Government, the import licences were granted by the Government, the import licences will be issued in the names of actual users nominated to the import licences by export perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asst. yrs 1972-73 and 1974-75. 4. The Commissioner of Appeals, who subsequently heard the assessee s appeal for the asst. yr. 1973-74 held likewise and also referred to the Madras High Court decision in 110 ITR 880 (Gordon Wooderoffee Co.) as supporting the assessee s case. 5. Before us the learned Departmental Representative referred to the Government s Notification cited above and contended that the conditions laid down therein were not satisfied. The Departmental Representative submitted that the assessee would get the exemption under s. 104(3) only if he exported goods out of India and received the sale proceeds of the exports in India and the receipts from the transfer of the import licences by the assessee to actual users in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the entire realisation therefrom should be made in the same accounting year, the exemption under the notification being to a particular class of companies, namely, companies who were exporting goods as described in the notification. 7. We have heard the parties and are unable to find any merit in the Revenue s contention. The material provision reads are under: "104(3) If the Central Government is of opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette, and subject to such conditions as may be specified therein, exempt any class or companies to which the provisions of this section apply from the operation of this section." The Government s relevant notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or on its behalf in accordance with the Foreign Exchange Regulation Act, 1947 (7 of 1947), and any rules and order made thereunder; Provided further that the sale proceeds derived by the company from the exports, if any, referred to inn item (a) and the gross receipts derived by it from the activities of its business referred to in item (b) or item (c) or both, during the previous year, amount, in the aggregate, to 50 per cent or more of the aggregate amount of the sale proceeds and all other gross receipts of the business during the previous year credited to the profit and loss account of the company." In the present case it is common ground before us that if the realisation from the transfer of the assessee s import licences described ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounting year itself. The absence of the words during the previous year in the first proviso therefore manifestly supports the assessee s plea that the notification also envisages a time lag between the date of actual export of goods and the realisation therefrom. The reference to the receipts in India of the sale proceeds of the exports in accordance with the Foreign Exchange Regulation Act, 1947 in the first proviso also lends support to the assessee s plea that the different language used in the second proviso, namely, sale proceeds derived from the exports is intended to give a wide sweep to the scope of the expression sale proceeds as including even the realisation from the sale of the import licences. In this connection we may re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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