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TMI Blog2009 (8) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income-tax Act, 1961 (hereinafter referred to as the Act ) for the assessment years 1998-99 to 2001-02 vide his orders dated 31-03-2003 and 26-03-2004. 2. The first common issue in ITA No.790-792/Ahd/2005 1684/Ahd/2005 is as regards to the order of CIT(A) deleting the additions made by the Assessing officer on account of cash credit u/s.68 of the Act by treating the exports made to Russia as bogus. The grounds are identically worded in these four appeals and for the sake of clarity we are reproducing the Ground as raised in ITA No.790/Ahd/2005 for the assessment year 1998-99. 1. The ld. CIT(A) has erred in law and on facts in deleting the addition of ₹ 70 lacs on account of unexplained cash credit u/s.68. 3. The bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the assessee had also made so called bogus export to M/s Arina, he alleged that the assessee is also involved in such kind of bogus export of goods by over invoicing and receiving money from Russia on large scale. The assessee submitted that the AO has just made an assumption that the assessee has also made bogus export to Russia merely on the basis of information that some parties are involved to make bogus export to M/s Arina, Moscow, however as a matter of facts the name of the assessee is not found in the proceedings carried out by the DRI, New Delhi. For other years similar allegations were made for some other genuine parties. The AO on such basis made addition of ₹ 70,00,000/- , ₹ 64,00,000/- Rs.,1,06,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Ld. Departmental Representative stated that as per details of modus operandi of the export fraud as discussed by the AO, the bogus export profits are nothing but receipt of assessee-companies on-money initially sent abroad to Hawala. It was argued by him that the unaccounted money by way of this fraud is sought to be regularized by showing the same as realization of export proceeds. In view of these arguments, the Ld. DR stated that the additions made by the AO should be restored. 5. After hearing the rival contentions and going through the facts of the case, it is a fact that the AO has accepted such turnover for working out deduction u/s.80HHC of the Act. We find that when the assessee has already offered sales realization as sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provided that loss arises on account clause (a) / (b) / (c) of S.80HHC(3) shall be set off against 90% of clause (iiia) / (iiib) / (iiic) to S.28 as the case may be or 90% of clause (iiid) / (iiie) to S.28 as the case may be as applicable in the case of an assessee referred to in the second / third / fourth proviso as the case may be. The Ld. DR stated that the AO will apply the amended provisions and will decide the issue on merits. 8. After hearing both the sides and going through the case records, we find that this issue needs re-examination in the light of amendment brought out in Section 80HHC of the Act by the Finance Act, 2005 by introducing Fifth proviso as stated by both the sides. Accordingly, we set aside this issue to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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