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TMI Blog2000 (8) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... s. However, the CIT, Rajkot vide his order under section 263 of the Act dated 19-3-1990 set aside the assessment on the point of admissibility of deduction under section 80HHC and directed the Assessing Officer to complete the fresh assessment as per the directions contained in the above-said order. The Assessing Officer had passed the fresh assessment order dated 3-12-1990 by determining the total income at Rs. 17,30,720. He has made the addition of Rs. 1,88,061 and Rs. 13,04,531 under section 37(3A) and under section 80HHC respectively. 3. The Assessing Officer held that 30% of the commission payments are in the nature of sales promotions expenditure. Therefore, he made the disallowance of Rs. 3,68,983 so far as the claim of 80HHC is concerned, the Assessing Officer has stated that any export made through export-house is not eligible for deduction under section 80HHC. He also stated that the system of preparing invoices followed by the assessee indicate that the assessee was even not knowing who is the foreign buyer and what was the destination of commodity exported. Thus, the assessee's contention that M/s. Batliboi Comp. Ltd., have only taken care to see that the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. Battliboi and Comp. Ltd., was only booking the orders for the assessee as the assessee was not in direct touch with the foreign party. He stated that when the income is received by an agent, he receives it for and on behalf of the principal and there is no question of any over-riding title. In this regard, the learned counsel placed its reliance on the following Court cases: (i) CIT v. Y.S. Desale [1982] 137 ITR 117 (Bom.) (ii) Sea Pearl Industries v. ITO [1988] 26 ITD 380 (Cochin Bench). In this regard, the learned counsel also invited our attention to Bindra's Interpretation of Statutes page 895 which reads as follows:-- "The common law rule as to agency is taken from the Roman maxim quipper alium facit perre ipsum facere videtur meaning "he who does an act through another is in law deemed to do it himself." A shortened from of this is qui facit per alium facit per se or "he that acts through another is deemed in law to do it himself". The word agent and agency are derived from the Latin words "ago", agent, agents, agenties, meaning an actor, a doer, a power or force that produces or accomplishes a thing, a generator, a producer (Mechem, Sec-1). Agent thus is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to the assessment year under consideration, the tax concession will be available to Indian Companies and non-corporate tax payers resident in India who has exported out of India any qualifying goods or merchandise during the relevant accounting year. Further to qualify for tax concession, the sale proceeds of the goods or merchandise exported out of India must be receivable by the assessee in convertible foreign exchange. In the present case, the assessee is an Indian Company engaged in the manufacture of various types of Drilling Machines. The assessee had not made any export but the goods manufactured by the assessee had been exported by "Batliboi". The Assessing Officer proved that the invoices prepared by the assessee for export of goods were in the name of "M/s. Batliboi Co. Ltd. A/c foreign buyer". Thus, the assessee was not aware even about the whereabouts of the foreign buyers. Thus, the assessee had not exported out of India any qualifying goods during the accounting year under consideration. The sale proceeds of the goods had been recovered by "Batliboi" in convertible foreign exchange. Therefore, as per the provisions of section 80HHC the assessee is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or merchandise during the relevant accounting year. (ii) The sale proceeds of the goods are mercandise exported out of India must be received by the assessee in convertible foreign exchange. In the present case, the assessee has not exported the goods. The goods have actually been exported by Batliboi of Bombay. The sale proceeds of goods have also been received by "Batliboi" of Bombay in convertible foreign exchange. Therefore, the two main conditions for allowing the concession under section 80HHC have been fulfilled by "Batliboi" of Bombay and not by the assessee. The assessee has neither exported the goods nor received the proceeds of the goods in convertible foreign exchange. Therefore, the question of allowing any concession under section 80HHC to the assessee does not arise. Therefore, the question of two interpretations of the Statute in the present case does not arise. The various cases relied upon by the learned counsel for the assessee are therefore not applicable to the facts of the present case. Some of the cases relied upon by the learned counsel for the assessee are pertaining to the income received by an agent on behalf of the assessee. These cases have no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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