Sea Pearl Industries vs Commissioner of Income Tax

Om Prakash, C.J.—By this application u/s 256(2) of the Income Tax Act, 1961, the assessee requires us to direct the Income Tax Appellate Tribunal to refer the following questions relating to the assessment year 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 u/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 u/s 80HHC unless they also file disclaimer from the export house ?

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

(iv) When deduction u/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 Clause (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 Section 80HHC of the Income Tax Act is void particularly when the deduction u/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 the 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 Section 80HHC of the Income Tax 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 ?"

In our opinion, the following question does arise from the Tribunal''s order dated March 28, 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 Section 80HHC of the Income Tax Act ?"

Since the questions formulated by the assessee do not point out the real controversy, we direct the Appellate Tribunal to refer the above stated question reframed by us, for the opinion of this court.