Kerala H.C : The Tribunal having admitted the contract between the assessee and the export house should not have the Tribunal held categorically that the assessee is the exporter entitled to deduction under s. 80HHC?

High Court Of Kerala

Sea Pearl Industries vs. CIT

Section 256(2)

Asst. Year 1986-87

Om Prakash, C.J. & J.B. Koshy, J.

Original Petn. No. 9723 of 1997

20th November, 1998

Counsel Appeared

E. Subramani, for the Petitioner : P.K. Ravindranatha Menon & N.R.K. Nair, for the Respondent

JUDGMENT

Om Prakash, C.J. :

By this application under s. 256(2) of the IT Act, 1961, the assessee requires us to direct the Tribunal to refer the following questions relating to the asst. yr. 1986-87 for the opinion of this Court :

“(i) The Tribunal having admitted the contract between the assessee and the export house should not have the Tribunal held categorically that the assessee is the exporter entitled to deduction under s. 80HHC?

(ii) The Tribunal is correct in their finding that the assessee having done the physical export and also having done anything and everything connected therewith and having brought into and received in India convertible foreign exchange they are not entitled to deduction under s. 80HHC unless they also file disclaimer from the export house?

(iii) The Tribunal is correct in their finding that the entitlement of deduction under s. 80HHC depends upon the terms of the contract alone between the assessee and the export house ignoring the mandatory requirements of s. 80HHC.

(iv) When deduction under s. 80HHC is available only to the exporter or to a supporting manufacturer should not have the Tribunal decided the question whether the assessee is an exporter or a supporting manufacturer before coming to a conclusion as contained in cl. (b) of para 7 end of their order ?

(v) The Tribunal having admitted the contract between the assessee and the export house should not have held that anything contained in the said contract, against the requirements of s. 80HHC of the IT Act is void particularly when the deduction under s. 80HHC is not transferable unless in the case of a supporting manufacturer to whom it could be transferred by an export house or trading house by disclaimer ?

(vi) The Tribunal having placed reliance on the contract between the assessee and export house, is correct in their finding that in a case where the contract is silent on whom the benefit should fall if the export house files disclaimer certificate, the benefit should go to the assessee ?

(vii) The Tribunal is correct in their interpretation of s. 80HHC of the IT Act and in holding that the agreement between the assessee and the export house supersedes the above section particularly in their finding that the benefits not reserved for any of the parties cannot be conferred on one as against the other party unless the other party files disclaimer certificate ?”

2. In our opinion, the following question does arise from the Tribunal’s order dt. 28th March, 1995 : “On the facts and in the circumstances of the case whether the Tribunal was right in holding that on the basis of the terms of the contract between the assessee and the export house, in the absence of a disclaimer certificate from the export house, the assessee is not entitled to the benefit of s. 80HHC of the IT Act.” Since the questions formulated by the assessee do not point out the real controversy, we direct the Tribunal to refer the above-stated question reframed by us, for the opinion of this Court.

[Citation : 240 ITR 417]

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