Jeyar Consultant and Investment Pvt. Ltd. vs Commissioner of Income Tax

R. Jayasimha Babu, J.—The question referred to us at the instance of the assessee is :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the deduction admissible to the assessee u/s 80HHC is nil ?"

The assessment year is 1989-90.

The assessee which is a financial consultant, had, during the assessment year, exported marine products in association with Devi Marine Foods Products Ltd. and claimed the benefit of Section 80HHC in respect of the total income received from that export. Though initially the assessee''s right to make a claim u/s 80HHC had been negatived, the Tribunal having held that the assessee was entitled to the benefit of that provision, a fresh assessment order was made. In that assessment made on May 28, 1992, the Assessing Officer held that the amount of deduction which the assessee could claim u/s 80HHC was nil, after making the computation in accordance with Section 80AB.

The assessee challenged that assessment unsuccessfully before the appellate authority. Further appeal to the Tribunal was equally unsuccessful.

Section 80HHC(1) as it stood on the date of the commencement of the assessment year 1989-90 reads thus :

"80HHC. Deduction in respect of profits retained for export business.--(1) Where an assessee, being an Indian company or a person (other than a company) resident in India, is engaged in the business of the export out of India of any goods or merchandise to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of the profits derived by the assessee from the export of such goods or merchandise ;"

(The proviso to that section is not reproduced as it is not material for the purpose of this case).

In this case, the assessee admittedly had not earned any profits from the export of the marine products. On the other hand, it had suffered a loss. The deduction permissible u/s 80HHC is only a deduction of the profits of the assessee from the export of the goods or merchandise. By the very terms of Section 80HHC, it is clear that the assessee was not entitled to any benefit thereunder in the absence of any profits.

The question referred to us therefore is answered against the assessee and in favour of the Revenue.