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TMI Blog1998 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect in not giving categorical decision on the ground of appeal taken by the Department that the Commissioner of Income-tax (Appeals) erred in directing to exclude the commission receipts from the purview of total turnover for purpose of computation of deduction under section 80HHC? 3. Whether the Tribunal was correct in applying the ratio of the decision of the Special Bench of the Tribunal in the case of International Research Park Lab Ltd. v. Asst. CIT, 60 ITD 37 and in not appreciating the facts of the case as independent of the facts in the relied upon case and giving a finding thereon?" The assessment years involved are 1986-87, 1987-88 and 1988-89. The assessee-company is dealing in export garments and is also earning income fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it was eligible to be included in the profits of the business for the purpose of calculating the relief under section 80HHC and it was not necessary for the profits to exceed in export business." The Tribunal directed the Assessing Officer to follow the Special Bench view of the law and compute the deduction consistently therewith for all the three years of assessment. The Revenue filed an application under section 256(1) of the Act seeking reference on the abovesaid three questions which application has been rejected by the Tribunal forming an opinion that the questions did not arise as referable questions of law. During the course of hearing, learned senior standing counsel for the Revenue maintained that the three questions were q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit by reference to its total business, i.e., export sales and local sales, but loss in export business (if calculated by segregating the same) still was the assessee entitled to benefit of section 80HHC? The abovesaid conclusion flows from the following facts : (i) In its appellate order dated January 8, 1996, the Tribunal has directed the Assessing Officer to act in accordance with the Special Bench decision which holds that the amount of commission was to be included in the profits of the business and that it was not necessary for the profits to exist in export business exclusively for the purpose of granting relief under section 80HHC. (ii) While rejecting the application under section 256(1), the Tribunal has in its order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal has committed a mistake in directing the Assessing Officer to include the commission income in the export turnover whereas it should have been stated that the Assessing Officer is directed not to include the commission income in the export turnover and the total turnover as commission income does not form part of the turnover. Rectification in the order of the Tribunal has been prayed for accordingly. At the time of hearing in this ITC we were informed at the Bar that the hearing on this application had taken place on January 23, 1998, but the orders thereon were not communicated to or received by the assessee and as such the assessee was not aware of the outcome of the application. However, it was conceded that if the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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