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TMI Blog1995 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment, the amended provisions would not lie thereto. Further reliance has also been placed on the order of the Karnataka High Court dt. 5-3-1992 in W.A. No. 712 of 1991 in the case of M.S.P. Spices (P.) Ltd., in which case the Karnataka High Court stated as below : " The appeal in this case was filed on 1-10-1986, so that the amendment to clause (c) could have no application to the present case. Consequently, there has been a merger of the assessment order with the appellate order, which is covered by a Full Bench Judgment aforementioned and not saved by the said clause (c). " The Full Bench judgment as referred to above is in the case of International Computers Indian Mfg. Ltd. It is the contention of the learned counsel for the assessee that the above-mentioned comment of the Karnataka High Court should be considered as a guiding factor for deciding the present issue. It has furthermore been pointed out that on a similar issue in the case of Met Chem Canada Inc. for asst. year 1984-85, the Bangalore Bench of ITAT had, by following the above-mentioned judgment of the Karnataka High Court in the case of M.S.P. Spices (P.) Ltd decided the issue in favour of that assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revisionary order passed by the CIT himself on 24-3-1988, i.e., before the amendment. The Bombay High Court has held in the case of CIT v. Sudhir Jayantilal Mulji [1995] 127 CTR (Bom.) 101 by following the earlier observations of the Supreme Court in the case of CIT v. Sun Engg. Works (P.) Ltd [1992] 198 ITR 297, as follows : " A case is only an authority for what it actually decides and not what may come to follow from some observations which find place therein. " In all the cases relied upon by the learned counsel for the assessee, there was no scope for the High Courts concerned to examine the matter from the stand point of what should have been the case had the revisionary order itself had been passed after the amendment. Therefore, we are of the opinion that the 2 decisions of the Bombay High Court and the one of the Karnataka High Court as referred to above might have pronounced good laws in cases only where the revisionary order itself had been passed before the amendment. So far as the facts of the present case are concerned, they are completely distinguishable from those case-laws on the above ground. As regards the reliance placed by the learned counsel for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds or merchandise exported by the assessee during the relevant previous year as per sub-clause (a), a further deduction of an amount equal to 5% of the amount by which the export turnover of such goods or merchandise during the previous year exceeds the export turnover of such goods or merchandise during the immediately preceding year, will also have to be allowed. The assessee exported 4 different types of goods or merchandise during the relevant year, the details of which are being given as below : ------------------------------------------------------------------ Category of Total export Total export Incremental goods/ turnover dur- turnover dur- export merchandise ing preceding ing the P.Y. turnover P. Y. 1981-82 1982-83 A. Y. 1982-83 A. Y. 1983-84 Rs. Rs. Rs. ----------------------------------------------------------------- Machine tools 7,42,52,858 13,30,54,299 5,88,01,441 Watches 2,38,87,429 1,16,21,543 Nil Tractors 57,057 91,338 34,281 Lamps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in the case of CIT v. Canara Works hops (P.) Ltd. [1986] 161 ITR 320. It has been argued that although the issue in that case was application of the deduction provision of the then section 80E of the Act, however, it was decided by the Supreme Court that whereas the assessee was carrying on 2 priority industries, loss in one industry could not be set off against profits from the other industry. On this particular analogy, the learned counsel for the assessee claimed that in this case also, deduction at the rate of 5% of the incremental export turnover should be allowed only in respect of such items which actually showed such increment. We are however, of the opinion that the arguments of the learned counsel for the assessee do not hold good. In the preliminary portion of sub-section (1) of section 80HHC (as it existed at the relevant time), a mention is made of export out of India during the previous year relevant to an assessment year, of any goods or merchandise. Both in sub-clauses (a) and (b) of the same sub-section, put later on, the expressions "export turnover of such goods or merchandise" has been used. It is thus required to be inferred that the reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended before us that an order to that effect might be passed by the Tribunal, in the worst case if the assessee's main contention be not agreed to by the Tribunal. It is not possible for us to agree with this particular plea of the assessee also. The assessee itself asked for rebate u/s 80HHC on all the 4 items and the same was allowed to it also in the assessment. The CIT, in his impugned revisionary order, has merely directed for allowance of the rebate under clause (b) alone in respect of the 3 items only. It means that allowance of rebate under clause (a) in respect of all the 4 items shall remain undisturbed. We have no powers to disturb that portion of the assessment order, which is not an appellate ground before us. The assessee itself should have made up its mind earlier and claimed rebate u/s 80HHC in respect of the 3 items as prayed for by it, in the beginning. Alternatively, the assessee could have raised this particular ground before the CIT also during the course of his proceeding u/s 263. Since this particular issue is not exactly before us, we are unable to pass an order on the new claim of the assessee. Ultimately, therefore, so far as the issue relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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