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TMI Blog2015 (3) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... t]. 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 gifte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of ₹ 24,01,108/- u/s 80HHC to the assessee on counter sales inspite of the specific provisions of Explanation (aa) to Section 80 HHC of the Act of 1961? (ii) Whether on the facts and circumstances of the case, the ITAT as well as the CIT(A) was justified in allowing the deduction u/s 80 HHC of the Act of 1961, when there is no finding to the effect that the goods were cleared at any of the custom station and further the assess itself has made a note to the effect that counter sales have not been considered as export out of India for the purpose of claiming deduction u/s 80HHC? (iii) Whether on the facts and circumstances of the case, the finding of the ITAT as well as the CIT(A) is perverse, contrary to the record and unte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 266 (Raj.)], Commissioner of Income Tax vs. Rajendra Kasliwal [(2004) 271 ITR 448 (Raj.)], Commissioner of Income Tax vs. Motilal R. Minda [(2001) 250 ITR 831 (Raj.)] and Income Tax Officer vs. Vaibhav Textiles [(2002) 258 ITR 346 (Raj.)]. The Allahabad High Court has also taken 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 subsection (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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. Unless anything contrary was alleged and proved by the department, it was not necessary for the assessee to have produced the documents of clearance of goods sold by him to the foreign tourists at any Customs Station. The Explanation (aa) is not a rule of evidence, nor 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 purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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