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TMI Blog2014 (9) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 28, on or after 1.4.1991 and not before - if the assessee is able to establish that amount is not relatable to freight or insurance attributable to the transport of the goods or merchandise beyond the customs station, then only the assessee will be entitled to move before the Assessing Authority and establish it as a matter of fact and claim the benefit – thus, the matter is remitted back to the AO – Decided in favour of revenue. - Tax Case (Appeal) No. 469 of 2005 - - - Dated:- 27-8-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. A. P. Srinivas Standing counsel for Income Tax For the Respondent : Mr. R. Venkata Narayanan JUDGMENT (Delivered by R. Sudhakar,J.) This Tax Case (Appeal), filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, the assessee filed an appeal before the Commissioner of Income Tax (Appeals), who confirmed the order of the Assessing Officer. As against which, the assessee preferred further appeal before the Income Tax Appellate Tribunal. 3. The Tribunal by placing reliance on Circular No.571 dated 1.8.1990 granted the benefit to the assessee in respect of cash compensatory support, duty drawback and profit on sale of import entitlement licenses. In so far as the issue that the insurance claim, machinery hire charges and rent charges cannot form part of the total turnover is concerned, the Tribunal, placing reliance on the decision reported in (2000) 245 ITR 548 (Bom.) (CIT V. Samir Diamonds Export Ltd.), held as follows: 6. At the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Finance Act 1990 with effect from 1.4.1991 and the circular is dated 1.8.1990. The plea of the Revenue is that by Finance Act, 1990, with effect from 1.4.1991, Clause (bb) of the Explanation to Section 80HHC was inserted; since it was indicated in the Finance Act, 1990, Circular No.571 dated 1.8.1990 was issued, however, subsequently, by Finance (No.2) Act, 1991, with effect from 01.4.1991, Clause (bb) of Explanation to Section 80 HHC was omitted and clause (ba) of Explanation to Section 80HHC was inserted by Finance (No.2) Act, 1991, retrospectively with effect from 1.4.1987. The relevant provision reads as follows: (ba) total turnover shall not include freight or insurance attributable to the transport of the goods or merchandise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph No.5 of the order of the Tribunal, we find that there is no decision rendered by the Tribunal on this issue. However, this issue can be considered in the light of clause (ba) of Explanation to Section 80HHC inserted vide Finance (No.2) Act, 1991 with effect from 1.4.1991. Learned counsel appearing for the assessee submits that if the assessee is able to furnish any material to establish the deduction, the Assessing Officer may be directed to consider the same. 7. It is made clear that if the assessee is able to establish that such amount is not relatable to freight or insurance attributable to the transport of the goods or merchandise beyond the customs station, then the assessee will be entitled to move before the Assessing A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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