Rajasthan H.C : Whether, on the facts and circumstances of the case the Tribunal is legally justified in allowing, deduction under s. 80HHC on the counter sales in India to the foreigners, which are not subjected to customs clearance, ignoring the specific provisions of s. 80HHC(4A) of the IT Act ?

Counsel Appeared

Sandeep Bhandawat, for the Petitioner : None, for the Respondent

JUDGMENT

BY THE COURT :

Heard learned counsel for the petitioner. No one appeared on behalf of respondent in spite of service.

2. This is an application under s. 256(2) of the IT Act, 1961 (for short ‘the Act of 1961’), for directing the Appellate Tribunal, Jaipur Bench, Jaipur, to state the case and refer the following question of law said to be arising out of Tribunal’s order in ITA No. 200/Jp/91, dt. 2nd Feb., 1995, relating to asst. yr. 1987-88 :

“Whether, on the facts and circumstances of the case the Tribunal is legally justified in allowing, deduction under s. 80HHC on the counter sales in India to the foreigners, which are not subjected to customs clearance, ignoring the specific provisions of s. 80HHC(4A) of the IT Act ?”

3. The Tribunal has rejected the application under s. 256(1) of the Act of 1961 on the ground that no question of law referable to the High Court arises from its appellate order :

4. The issue relates to interpretation of s. 80HHC. The provisions of that section whether read in totality, entails the benefit of deduction under s. 80HHC on the counter-sales in India to the foreigners, which are not subjected to customs clearance. In our opinion no question of facts are involved but it requires interpretation of statutory provisions which always remains a question of law.

The Tribunal has apparently erred in not appreciating this position in holding that no question of law arises out of its order.

The correctness or erroneous nature of the order passed by it in appeal is not criterion for making a reference of question of law which arises out of its order. An interpretation of statute or construction of document ordinarily is considered to be a question of law and requires to be referred by the Tribunal to the High Court for its opinion if sought by any party to the order passed by it. However, any such application for making a reference can be refused on the ground, if answer to such question is self-evident and no other view is possible or the question of law stands concluded by the decision of Supreme Court.

Both the situations in our opinion do not exist in the present case. Accordingly, we allow this application under s. 256(2) and direct the Tribunal to state the case and refer the aforesaid question of law to this Court for its opinion as prayed. There shall be no order as to costs.

[Citation : 250 ITR 831]