Income Tax Act, 1961 – ss.80HHC (1A) & (3A) a/w Explanation (baa) to s.80HHC and s.28(iiia) to (iiie) – Manner of computation of deduction under s.80HHC, in case of supporting manufacturer selling goods to an Export House – Interpretation of – Assessee, supporting manufacturer, dealt in manufacture of carpets which it sold to an Export House, which, in turn, directly exported the goods manufactured by the assessee – Assessee claimed deduction of export incentives at par with the direct exporter u/s.80HHC since it received export incentives in the form of Duty Draw Back (DDB), Duty Entitlement Pass Book (DEPB) etc. – Assessing Officer partly disallowed the deduction – High Court relying on Baby Marine Exports case held that assessee is entitled to claim deduction at par with the direct exporter – Decision in Baby Marine Exports was subsequently followed in Sushil Kumar Gupta case – Held: Decisions in the said two cases cannot be agreed upon – They require re-consideration by a larger Bench since the issue in question has large implication in terms of monetary benefits for both the parties – Matters be placed before Hon’ble the Chief Justice of India for appropriate orders.
Income Tax Act, 1961 – s.80HHC – Purpose of – Discussed. Directing the matters to be placed before Hon’ble the Chief Justice of India for appropriate orders, the Court
HELD: 1.1 The very purpose of Section 80HHC of the Income Tax Act, 1961 is to promote the export business as well as in order to keep the domestic products competitive in the global market by allowing tax deduction on export profits. Since the inception of Section 80HHC of the IT Act, these benefits were available only to the direct exporter which later on extended to the supporting manufacturer who is selling goods or merchandise to an Export House/Trading House by inserting subSection (1A) and (3A) in Section 80HHC of the IT Act. The legislature divided Section 80HHC of the IT Act in two parts for the purpose of deduction, namely, direct exporter and supporting manufacturer. Direct exporter, being an Indian company or a person (other than company) resident in India, who directly exports the goods to some other country whereas supporting manufacturer, being an Indian company or a person (other than company) resident in India, who instead of direct export, supply the goods to the Export Houses who eventually export these goods. However, clauses (ba) and (baa) of the Explanation to Section 80HHC defines “total turnover” and what items are not included therein and “profits of the business” to be reduced by ninety percent of any sum referred to in clauses (iiia) to (iiie) of Section 28 of the IT Act. Clauses (iiia) to (iiie) of Section 28 specifically refers to profits on sale of import license, cash assistance received or receivable against exports, duty drawback against export (Customs & Central Excise Duty Drawback Rules), any profit on the transfer of Duty Entitlement Pass Book (Duty Remission Scheme) and any profit on the transfer of Duty Free Replenishment Certificate. [Para 10] [1100-H; 1101-A-D]
1.2 On perusal of various provisions of the IT Act, it is clear that Section 80HHC of the IT Act provides for deduction in respect of profits retained from export business and, in particular, sub-Section (1A) and sub-Section (3A), provides for deduction in the case of supporting manufacturer. The “total turnover” has to be determined as per clause (ba) of the Explanation whereas “Profits of the business” has to be determined as per clause (baa) of the Explanation. Both these clauses provide for exclusion and reduction of 90% of certain receipts mentioned therein respectively. The computation of deduction in respect of supporting manufacturer, is contemplated by Section 80HHC (3A), whereas the effect to be given to such computed deduction is contemplated under Section 80HHC (1A) of the IT Act. In other words, the machinery to compute the deduction is provided in Section 80HHC (3A) of the IT Act and after computing such deduction, such amount of deduction is required to be deducted from the gross total income of the assessee in order to arrive at the taxable income/total income of the assessee, as contemplated by Section 80HHC (1A) of the IT Act. [Para 12] [1101-H; 1102A-C]
1.3 However, this Court is not in agreement with decisions in Baby Marine Exports and Sushil Kumar Gupta and as Explanation (baa) to Section 80HHC specifically reduces deduction of 90% of the amount referable to Section 28 (iiia) to
(iiie) of the IT Act, these decisions require re-consideration by a larger Bench since this issue has larger implication in terms of monetary benefits for both the parties. The following substantial question of law of general importance arises for re-consideration by this Court:
“Whether in the light of peculiar facts and circumstances of the instant case, supporting manufacturer who receives export incentives in the form of duty draw back (DDB), Duty Entitlement Pass Book (DEPB) etc. is entitled for deduction under Section 80HHC of the Income Tax Act, 1961?” [Para 15] [1103-F-H]
Commissioner of Income Tax, Thiruvantanpuram v. Baby Marine Exports (2007) 290 ITR 323 (SC) : [2007]
4 SCR 628 ; Commissioner of Income Tax Karnal v. Sushil Kumar Gupta [Judgment dated September 12, 2012 passed by Supreme Court in Civil Appeal
No. 6437 of 2012 @ Special Leave to Appeal (Civil) No. 7615 of 2009 – held, require re-consideration.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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