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TMI Blog2006 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal, Madras. The issue involved is common for all the tax cases and hence counsel appearing for both the sides requested the court to take up all the above matters together. Accordingly, all the matters are taken up together and the same are disposed of by a common judgment. 2 The questions of law raised in the above appeals are as under: (a) Tax Case (A) Nos. 224 to 226 of 2003, 1093 of 2004, 1293 to 1299 of 2005, 1175 of 2005: Whether, on the facts and circumstances of the case, the Tribunal was right in treating the transfer of the right to exhibit the films, as a sale of goods or merchandise for the purpose of deduction under section 8OHHC ? (b) Tax Case (A) No. 295 of 2005 Whether, on the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that only a right to exploit was given and there was no goods merchandised or exported ? (d) Tax Case (A) No. 2124 of 2006 : Whether, on the facts and circumstances of the case, the Tribunal was right in treating the lease of the right to exhibit the films for a limited period, as a sale of goods or merchandise eligible for the purpose of deduction under section 8OHHC? 3 For the sake of convenience, we are taking up Tax Case (A) No. 224 of 2003, in which the question of law reads as under: Whether, on the facts and circumstances of the case, the Tribunal was right in treating the transfer of the right to exhibit films, as a sale of goods or merchandise for the purpose of deduction under section 8OHHC? 4 The brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. In the present case, there is only an agreement by which, only the right to exploit was transferred, but there is no export of goods or merchandise. It is also further submitted that section 8OHHC of the Act, clearly stipulates that the sale proceeds of such goods must be brought into India. The words sale proceeds mean, there should be only actual export sale. In this case, there is no sale of goods and hence the assessee is not entitled to relief under section 8OHHC of the Act. 7 Learned senior counsel appearing for the assessee submitted that the word goods or merchandise has not been defined in the Act and hence the meaning of these words has to be understood either from the dictionary or from other Acts. The dictionary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sale of goods and therefore no export was carried out and accordingly, deduction under section 8OHHC of the Act was denied. Aggrieved by the order, the assessee filed an appeal to the Bombay High Court. The Bombay High Court considered the scope of section 8OHHC of the Act and allowed the assessee's appeal. The said Bombay High Court judgment is now reported in Abdulgafar A. Nadiadwala v. Asst. CIT [2004] 267 ITR 488. The contentions raised before the Bombay High Court by the counsel is at page No. 508 of the said judgment and the reads as follows : 'Points for determination: The substantial points for determination, in a narrow compass, on rival contentions as between the parties canvassing rival views, on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes of section 8OHHC. We, thus, hold that the transaction in question involved export of goods out of India falling within the sweep a the concept of 'sale' involving clearance at the customs station a contemplated under section 8OHHC of the Act. 11 In respect of the third point, the Bombay High Court held as follows (page 523) ; Reading of the above illustrations in general and clauses (v) and (vi) thereof in particular make it clear that while describing the deduction under section 8OHHC the words used are 50 per cent. of the 'export proceeds' brought into India. It is, therefore, clear that even the Central Board of Direct Taxes has understood the words 'export proceeds' to be synonymous to 'sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court and we find that the facts including the contentions of counsel in the Bombay High Court judgment are the same, identical and similar to the facts involved in present case. Counsel for the Revenue, neither produced any material or evidence, nor showned any other High Court judgment, taking a country view to that of the Bombay High Court. Further, no compelling reasons were given by the Revenue to take a different view to that of the Bombay High Court and hence, we respectfully agree with the view taken by the Bombay High Court. Further, we note that contentions of the counsel are also well supported by the apex court judgment reported in [2004] 271 ITR 401, in the case of Tata Consultancy Services v. State of Andhra Pradesh In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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