9911796707
TMI Blog1998 (3) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer to allow deduction under section 80HHC to the assessee-company." The petition under section 256(1) of the Act filed by the Department was rejected by the Tribunal forming an opinion that the abovesaid question did not arise as a question of law from the order of the Tribunal. The assessee claimed deduction under section 80HHC of the Act. The Deputy Commissioner of Income-tax, Range-VI, who was the assessing authority disallowed the claim for deduction on the following reasoning as set out in the order of assessment : "Deduction under section 80HHC : The assessee has claimed deduction under section 80HHC amounting to Rs. 15,39,752. The assessee did not give any explanation in support of its claim. From the profit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 80HHC and found that the net income was reduced to a negative figure. He, therefore, held that the appellant was not entitled to any deduction under section 80HHC. On behalf of the appellant it was submitted by Sh. Sah that the Assessing Officer has not interpreted section 80AB and section 80HHC correctly. Section 80AB provides that deduction under a particular section of Chapter VI-A, Section-C would be restricted to the income covered by that section of Chapter VI-A. In other words, if the assessee is entitled to deduction under section 80HHC, that deduction would be admissible to the assessee only if it has income from export turnover. Sh. Sah further submitted that clause (b) of sub-section (3) of section 80HHC lays down th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C by multiplying net income after giving appeal effect by 6.12/7.73." Feeling aggrieved by the appellate orders the Revenue went in appeal to the Income-tax Appellate Tribunal. The appeals have been dismissed by a common order dated October 28, 1994. A perusal of the order of the Income-tax Appellate Tribunal shows that before the Tribunal the learned Departmental representative simply relied on the orders of the Assessing Officer in support of his submission that the same should not have been reversed in appeal in so far as it related to section 80HHC. The controversy before the Tribunal centred around section 80HHC(3)(b). The order of the Tribunal shows that the arguments advanced by either party were at interpreting the expression "tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the parties, we are of the opinion that learned counsel for the assessee is right and, therefore, the petition under section 256(2) of the Act deserves to be rejected. At the stage of filing the petition under section 256(1) of the Act, the following statement of case was filed on behalf of the Department : "The Income-tax Appellate Tribunal as well as learned Commissioner of Income-tax (Appeals) both have stressed on the expressions export turnover and total turnover and have not considered the nature of other income which were held by the Assessing Officer not allowable for deduction under section 80HHC. The nature of incomes clearly indicates that the main income is under the head "agency commission" in both these y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a plea which was not raised before the Tribunal, when the appeal came to be heard and decided. The High Court is not precluded from considering "another aspect of the same question" provided that the question was there before the Tribunal when the appeal was decided. But a new question cannot be urged in the proceedings under section 256 of the Act. In the case at hand we are not satisfied that the plea sought to be raised before this court at this stage was raised before the Tribunal or any of the authorities below till the assessment proceedings achieved finality. In T. D. Kumar and Brothers (P.) Ltd. v. CIT [1967] 63 ITR 67 (SC), their Lordships have held: "The question on which a reference to the High Court was sought was a limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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