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TMI Blog1997 (3) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... er years. We find that this issue was not agitated by the assessee before the AO but it was taken by the assessee s counsel before the CIT(A). The CIT(A) did not agree with the views of the assessee s counsel and found that in the case of CIT vs. Loonkar Tools (I) Ltd. (1995) 127 CTR (Raj) 77, the Rajasthan High Court held that the depreciation and investment allowance are to be deducted before giving the special deductions as provided under Chapter VI-A. The CIT(A) accordingly confirmed the order of the AO and held that the AO was justified in setting off the unabsorbed depreciation and unabsorbed investment allowance for computing the assessee s net income. The assessee is in further appeal before the Tribunal. 5. It is argued by the learned counsel for the assessee that s. 80HHC is a separate and independent section and while computing deduction under that section only the profit for the asst. yr. 1982-83 should be considered and unabsorbed depreciation/investment allowance for earlier years cannot be deducted out of the profits of asst. yr. 1982-83. The profit under s. 80HHC is not to be computed in normal manner because under that section the relief is intended to be given o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the total income. Sec. 29 of the IT Act provides that "income" referred to in s. 28 shall be computed in accordance with the provisions contained in ss. 30 to 43D. The unabsorbed depreciation and unabsorbed investment allowance are allowable deduction under ss. 32 and 32A of the Act and these deductions have to be considered in view of the provisions of s. 29 for the purpose of determining the assessee s total income from business. Under s. 80HHC(1) deduction is admissible to the assessee in respect of profits derived by him from the export of goods or merchandise, "profits of the business" has been defined under Expln. (baa) to sub-s. 4(A) to sub-s. 80HHC. Under this Explanation, "profit of the business" means profit of the business, as computed under the head "profits and gains of business or profession" as reduced by.... 8. Sec. 29, as mentioned in the preceding para, is to the effect that profits and gains of business have to be computed in accordance with the provisions contained in ss. 30 to 43D. Therefore, for the purpose of determining the profits and gains of business the provisions of s. 32 and 32A regarding carry forward and deduction of unabsorbed depreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, the CIT(A) confirmed the action of the AO. Hence, the present appeal by the assessee. 10. It is argued by the learned counsel for the assessee that the assessee-company had exported marine and frozen products both directly and also through recognised export houses. In respect of export sales effected through the medium of export houses, the assessee charged an additional consideration on the basis of an agreed percentage of the FOB value of each export invoice and the consideration so received had been credited as "commission receipts" in the P L a/c. The said receipt even though credited as "other income" in the P L a/c, nevertheless partakes the character of sales turnover since the same was realised from the export houses, which is in addition to the sale value. The said additional realisation has not been received in foreign currency to justify for treating the same as export turnover. However, since it is an additional sales realisation over and above the export value, the same shall have to be included in the total turnover. It is argued by the assessee s counsel that the additional consideration was realised in pursuance of debit notes raised on the export houses a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not form part of total turnover. It is pointed out by the learned Departmental Representative that even the assessee s Chartered Accountant has reduced 90 per cent of the sale commission and now the assessee cannot say that the commission was something else. 12. We have carefully considered the facts of the case, paper-book filed by the assessee and the rival submissions. The assessee filed a copy of the agreement dt. 25th March, 1992, entered into with M/s Tata Exports Ltd. This agreement provides certain obligations on the part of the assessee. For instance cl. 3 of the agreement provides that all expenses upto placing the cargo on board will be paid by the processor i.e., the assessee-company. Under cl. 4 of the said agreement the assessee will hand over to Tata Exports Ltd. ( TEL for short) the clean bills of lading and all relative documents after completing all the formalities in respect of the export within seven days from the date of the respective bills of lading. Clause 8 of the agreement is to the effect that all documents shall be as per Appendix I and it will be the assessee s responsibility to arrange for and prepare all the relevant documents. Clause 9 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partmental Representative pointed out that this issue does not arise out of the order of the CIT(A). 14. We have considered the matter. Since the issue does not arise out of the order of the first appellate authority, the assessee cannot raise this ground of appeal. It is also clear that proviso to s. 80HHC applies to profit computed under sub-s. (3) cls. (a), (b) and (c) of the said section. Sub-s. (3) applies to assessees who export goods or merchandise and not to the case like the present assessee which is a supporting manufacturer and the provisions of s. 80HHC(1) are applicable to the assessee-company. Therefore, even the proviso to s. 80HHC(3) is not prima facie applicable to the case of the assessee, and since the issue does not arise out of the order of the CIT(A), we dismiss these two grounds raised by the assessee, as not arising out of the order of the first Appellate Authority. 15. In the result, the assessee s appeal is dismissed. ITA No. 1929/Mad/1996 16. This appeal by the assessee is against the order of the CIT(A)-VI, Madras, dt. 14th Nov., 1995, for the asst. yr. 1992-93, which was passed against an order of the AO passed under s. 154 rectifying the intima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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