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TMI Blog2013 (9) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As per clause 2(a) to Section 80HHC, the petitioner to avail of the said benefit was required to receive the sale proceeds in convertible foreign exchange within a period of six months from the end of the previous year. This Section also stipulated that on an application by assessee this period could be extended by the Chief Commissioner or Commissioner on being satisfied, for reasons to be recorded in writing, that the assessee for reasons beyond his control was unable to bring the convertible foreign exchange within the period of six months. No upper time limit was fixed under the said sub-section. 4. During the previous year between 1st April, 1993 to 31st March, 1994, the petitioner had received sale proceeds in convertible foreign exchange equivalent to Rs.3,67,21,421/- out of total export turnover of Rs.4,98,13,343/-, within the period of six months from the end of the previous year. 5. For extension of time to realise the balance amount of Rs.1,49,51,970/-, the petitioner had filed an application dated 12th September, 1996 under Section 80HHC(2)(a) of the Act. Extension of time uptil 31st March, 1995 was prayed for. In the application, it was stated that due to disinteg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Respondent No. 1 vide his order dated 17th August, 1995 allowed the first application for extension of time upto 31st March, 1995 but rejected the second application for extension of time upto 31st March, 1996. The reason given by the Commissioner of Income Tax, Delhi-III was that the assesseee had not filed the return for Assessment Year 1994-95 as he wanted to file the same only after realisation of export proceeds. However, the petitioner had filed audit report under Section 44AB of the Act, but the same was returned by the Assessing Officer because return of income was not filed. The second reason given was that in the first application dated 12th September, 1994, the petitioner had only sought extension of time upto 31st March, 1995, while the second application was filed on 8th June, 1995. Therefore, the first application should be considered. 9. We record and observe that the petitioner has stated that he had received and realised the entire export proceeds by February, 1996. The aforesaid factual position is not disputed and admitted. 10. It is clear from the impugned order, that the Commissioner of Income Tax, Delhi-III has not dealt with the real issue and controve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt authority to grant extension of time, which necessarily includes the power to refuse extension of time beyond the period of six months, is quasi-judicial in nature. The statutory embodiment of the requirement of recording reasons in writing is clearly indicative of the Legislature's intention that the power vested in the Chief Commissioner or Commissioner to grant or refuse extension of time must be exercised reasonably and fairly and must not be exercised arbitrarily and the order passed by the concerned authority must reflect objective application of mind to the factors relevant to the determination of the issue as to whether the assessee could not bring or receive the sale proceeds of the exported goods due to reasons beyond his control. The expression "reasons beyond his control" has not been defined in the Act. Therefore, we shall have to interpret the same keeping in view the context in which it appears and by adopting that mode of interpretation, it can easily be said that the assessee can seek extension of time beyond six months only by showing that he had acted with due diligence and had taken the necessary steps for brining the sale proceeds within the stipulated perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Arora and Another versus Commissioner of Income Tax, 2000 (245) ITR 10 (Del) it was observed that the application for extension of time could be filed even after six months and it was not necessary that the application should be filed within or before six months period stated in Section 80HHC(2)(a). In Vikram Overseas Private Limited versus Commissioner of Income Tax and Others, 1996 (222) ITR 253, Delhi High Court referred to decision of the Supreme Court in CIT versus Ajanta Electricals, 1995 (215) ITR 114 (SC) and dealt with the question whether the Commissioner or Chief Commissioner could reject an application on the ground that no provision for extension of time was specifically incorporated, where the application was moved after the said period of six months as assessment cannot kept pending for an indefinite period. It was held that this observation and reason of the Commissioner was irrelevant and extraneous as the parameters, which govern the exercise of power under Section 80 HHC(2)(a), stand stipulated in the provision itself, i.e., whether or not for reasons beyond the control of the assessee, the sale proceeds in convertible foreign exchange had not been brought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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