TaxTMI 
TaxTMI 
2005 (12) TMI 71
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....rt entitlements of Rs. 35,46,150. The Assessing Officer examined the claim for deduction made by the assessee and came to the conclusion that no exports had been made by the assessee in the assessment year 1996-97 or 1997-98. He also found that the import entitlement sold by the assessee related to exports made in the assessment year 1995-96. As regards the export sale of Rs. 24,822, the Assessing Officer held that the same represented the price of gift samples and not trade samples as contended by the assessee. The Assessing Officer accordingly held that the assessee was not engaged in the business of exports and that there was no export sale during the year under consideration nor any evidence to prove any customs clearance. The assessee'....
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.... section 255(4) of the Income-tax Act, 1961: "Whether, on the facts and in the circumstances of the case, the appellant during the relevant year was engaged in the business of export out of India or any goods or merchandise, so as to entitle it the deduction under section 80HHC of the Income-tax Act, 1961?" When the matter was taken up by the Third Member, learned counsel for the parties appear to have agreed to the reframing of the question in order to cover the entire controversy relating to the admissibility of the deduction under section 80HHC. The reframed question was in the following words: "Whether on the facts and circumstances of the case and in law, the assessee is entitled to deduction under section 80HHC?" The Third....
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....ustoms clearance as per the customs law in force in India. Therefore, in the absence of such evidence, it has to be held that there was no export of goods by the assessee as claimed by him. Mere purchase/sale invoice coupled with foreign remittance is not enough to prove actual export. It is not necessary for me to adjudicate whether such evidence as furnished by the assessee was fabricated or not. Be that as it may, the assessee has failed to discharge his onus of proving the factum of actual export. Hence, I am inclined to agree with the view of the learned Judicial Member on this aspect of the issue." The Third Member then examined the question whether the assessee was entitled to deduction under section 80HHC assuming that the assess....
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....uld not have been reframed and the issue had to be examined only by reference to the question referred to the Third Member without enlarging its scope. Secondly, he contended that the findings recorded by the Tribunal that there was no actual export of goods during the year under consideration was perverse inasmuch as the material produced by the assessee substantially discharged the onus of proving that such export had in fact taken place. There is, in our view, no merit in either of these submissions. The question referred to the Third Member of the Tribunal was limited to whether the assessee was "engaged in the business of export out of India" so as to entitle it to deduction under section 80HHC. The emphasis was more on whether the ass....
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....pective after the question was reframed and determining whether any exports had in fact been made during the year under consideration. The first limb of the argument of Mr. Sharma, therefore, fails and is hereby rejected. Coming then to the second limb of the appellant's grievance, we find that the authorities below, namely, the Assessing Officer, the Commissioner of Income-tax (Appeals), and the Tribunal have concurrently held on the facts that the assessee had failed to establish the actual making of the exports during the year under consideration. That finding cannot be assailed in an appeal under section 260A of the Act except on the ground of perversity which indeed was the ground urged by Mr. Sharma also. We are, however, of the vi....