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TMI Blog2015 (3) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... Court]. In the present case the assessee had produced the Sale To Foreign Tourists Voucher, which not only recorded the name and address of the customer (tourist), but also his/her passport number and the declaration given by him that the goods will not be gifted or sold in India. The goods sold at counter at the shop/emporium were sold to be taken out of the country, which necessarily involved clearance of baggage, by the customs authorites. There was no further proof, nor any document in proof of clearance of the goods at the Customs Station by the assessee is required. The declaration in the form of Sale To Foreign Tourist Voucher, for sale made against the convertible foreign exchange with the undertaking that the goods will not be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction of ₹ 5,19,337/- u/s 80HHC to the assessee on counter sales inspite of the specific provisions of Explanation (aa) to Section 80 HHC of the Act? (ii) Whether on the facts and circumstances of the case, the ITAT was justified in allowing the deduction u/s 80 HHC of the Act in respect of counter sales made to the foreign tourists, when the assessee has inspite of several opportunities, failed to file any to the effect that the goods were cleared at any of the custom stations? 2. The facts, given rise to the present appeal, are that the respondent-assessee is a dealer of jewellery and handicrafts from shops/emporium at Jaipur. The assessee sold the goods by counter sale to foreign tourists in the showroom against the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken the same view in Marble Men vs. Commissioner of Income Tax Ors. [(2005) 272 ITR 81 (All.)] following its earlier judgments. 6. Learned counsel appearing for the Income Tax Department-appellant tried to distinguish the decisions, on the ground of the language used in the Explanation (aa) of sub-section (4C) of section 80HHC of the Income Tax Act, is that unless there is proof of the clearance at any Customs Station, as defined under section 2(13) of the Customs Act, 1962, the exemption was not allowable by the assessing authority. He submits that the burden of proof of clearance at any Customs Station was on the assessee, and that since there no documents were produced recording any clearance at any Customs Station, the exemption wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raises any presumption. It also does not require any proof of clearance at any Customs Station. The explanation is couched in double negative. It is a rule of exclusion and excludes only those transactions, which do not involve clearance at any Customs Station. It cannot be read in a manner, as suggested by learned counsel appearing for the department that a proof of customs clearance of baggage must be provided to establish the export of goods out of India for the purpose of deduction of profits on such sales under section 80HHC of the Income Tax Act. 9. The question of law is even otherwise covered by judgment of the Supreme Court in Commissioner of Income Tax vs. Silver Arts Palace (supra), which has been followed by the Rajasthan H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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