9911796707
TMI Blog1995 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... restriction is not absolute, i.e., where the Chief Commissioner or Commissioner is satisfied that the assessee was unable to do so within the said period of six months, for reasons beyond his control, he may allow further period. In the present case, admittedly, the assessee, a company, resident in India, engaged in the business of export, having exported such specified merchandise, was unable to receive in or bring into India the sale proceeds thereof within the said period of six months. Accordingly, the assessee claimed deduction in its return submitted on December 31, 1992, in respect of the assessment year 1991-92 ending on March 31, 1992, on account of export made by it on March 21, 1992. The assessee has sought to take the benefit of the discretion vested in the Chief Commissioner or Commissioner for allowing further period on the ground that the assessee was unable to receive in or bring into India the sale proceeds within the said period of six months and had made an application to the Commissioner of Income-tax on December 28, 1992. The said application was turned down by the Commissioner of Income-tax by an order dated September 13, 1993, which is annexure "I" to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a form for submitting return. The said Form, in item "G", requires the assessee to give the statement of the total income wherein a column in item No. 5 is provided for " Less : Deductions under Chapter VI-A 'wherever admissible' with the instruction... " a report under section 80HHC,... certificate referred to in section 80HHC, "wherever applicable", has been provided along with a space or column "specifying deductions to be claimed". Therefore, looking into the provisions of various sections of the Act to which our attention was drawn by both learned counsel, it appears to us that section 80HHC(2)(a) does not specify any manner or procedure for claiming deduction. For the purposes of claiming deductions under the provisions of sections 80C to section 80U other than section 80HHC, no manner, procedure for making application or time limit for such application has been prescribed. Such deductions are to be claimed in the return itself. Therefore, section 80HHC cannot claim special treatment other than the rest of the sections 80C to 80U. The time limit mentioned in section 80HHC(2)(a) is not a limitation for claiming deduction but it is the right to claim deduction which is av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 28 whereof reads as follows : " 28. Under the existing provisions of section 80HHC of the Income-tax Act, exporters are allowed 100 per cent. deduction in respect of the profits derived from export of goods or merchandise. One of the conditions for allowing the deduction is that the sale proceeds should be receivable in convertible foreign exchange. As a result, the deduction may be allowed even if the foreign exchange is not brought into India. In the absence of such a condition, one of the main purposes of allowing such concessions, namely, to augment the foreign exchange earnings of the country, is being defeated. Therefore, section 80HHC has been amended to provide that for obtaining the deduction under this section, the taxpayer will be required to bring into India, the sale proceeds of goods or merchandise, in convertible foreign exchange, within a period of six months from the end of the previous year or within such extended period as the Chief Commissioner or Commissioner of Income-tax may allow on being satisfied that the taxpayer was prevented from complying with this requirement for reasons beyond his control. " Though much stress has been laid by Mr. Misra to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to exercise power which is invested in aid of enforcement of a right--public or private--for a citizen. This has been so held in the case of L. Hirday Narain v. ITO [1970] z78 ITR 26 (SC). According to us, the right to deduction under section 80HHC is a right to the assessee which he can get straightaway if it is (sic) had within a period of a six months as contemplated therein. But the said right appears to remain suspended if the assessee is unable to have it for the reasons beyond his control. In such circumstances, authority is empowered to allow further period to cover the period of suspension as contemplated, if he is satisfied that the conditions contemplated are in existence. Therefore, it appears to us that the exercise to allow further time by the Commissioner is not dependent on the making of any application or that the said discretion is to be invoked before the expiry of the said period of six months, as has been sought to be argued by Mr. Misra. In dealing with the question, we do not feel it necessary to refer to other submissions and citations made at the Bar. The more erudite the argument, the more the confusion. We, therefore, refrain from adverting to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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