ASSISTANT COMMISSIONER OF INCOME TAXTHE COMMISSIONER OF INCOME TAX Vs. ABCON ENGINEERING AND SYSTEMS PVT LTD

JUDGEMENT

(1.) ALL these cases are disposed of by this common order. ITA 86/99 this appeal is at the Instance of the revenue. In relation to the assessment year 1995-96, the assessment was concluded in the respondent assessee's case, disallowing deduction as claimed under Section 80 (O) of the Income Tax Act. An appeal was filed before the Appellate commissioner. The appeal Stood dismissed. Thereafter an appeal was preferred to the tribunal. The tribunal allowed the appeal in terms of an order dtd 8-4-1999. Aggrieved by the order of the tribunal, the revenue is before us. The following questions of law are framed by this Court; whether on the facts and in the circumstances of this case, the tribunal is correct in law in holding that the appellant is entitled for the relief in respect of deduction under Section 80-O of the Act? whether on the facts and circumstances of the case, the tribunal is correct in law in entertaining the appeal by condoning the delay? itrc 25/2000 this reference is again at the instance of the revenue. The assessee received income in foreign currency and it was brought into India. The assessee claimed deduction under Section 80-O of the Income Tax Act, 1961, to the extent of 50% of the amount so brought to India. The amount of foreign currency that was brought to India was Rs. 26,41,795/- and 50% of this was Rs. 13,20,877/- which was claimed as deduction. The same was rejected by the assessing officer. An appeal was filed and the appeal was allowed. Aggrieved by the same revenue went in appeal before the tribunal. The tribunal dismissed the appeal filed by the revenue. Thereafter a reference was sought for by the revenue and the tribunal has chosen to refer the following question of law; i) Whether the tribunal was right in law in holding that the assessee is entitled to deduction under section 80-O of the Income Tax Act 1961, to the extnet of 50% of the gross amount of convertible foreign exchange brought into India without deducting any expenses that are incurred in India? ii) Whether the tribunal was right in law in holding that the provisions of Section 80ab of the income Tax Act, 1961, do not override the provisions of Section 80-O of the Act and thereby the amount of deduction allowable has to be with reference to that calculated under Section 80-O but restricted to the amount of available gross total income? ita 3254/2005 this appeal is at the instance of the assessee. Appellant is an engineering and management consultant. It received income in foreign currency by way of fees in consideration of technical services rendered outside India to foreign enterprises and the income by way of such fees was brought into India. Appellant claimed deduction under Section 80-O at 50% of such income. The assessing officer rejected the claim. Aggrieved by the same an appeal was filed by the appellant. The appeal was allowed. Aggrieved by the same revenue filed an appeal before the tribunal. The said appeal was allowed. Appellant is before us challenging the said order of the tribunal. The following question of law is framed by this Court. Whether the tribunal was correct in law in holding that deduction under Section 80-O of the Act would have to be with reference to the net income and not the gross receipts? ita No. 3270/2005 this appeal is at the instance of the assessee. Appellant is engaged in the business of manufacture and supply of conveyer components, erection and commissioning of conveyor systems. For the assessment year 1996-97 and 1997-98, appellant claimed exemption under section 80-O of the Income Tax Act. Deduction was allowed taking into consideration Section 80ab of the Act. Aggrieved by the said order, an appeal was filed by the assesses. The appeal stood allowed thereafter the revenue went in appeal to the tribunal. The tribunal allowed the appeal filed by the revenue. Aggrieved by the same assessee is before us. The following questions of law are framed by the assessee;

(2.) HEARD the learned Counsel for the parties.

(3.) SRI Kumar, Learned senior Counsel for the assessee would essentially argue that Section 80-O, if read carefully would show that what is referable is total income. Total Income has been defined under Section 80ab of the Act. Learned Counsel refers to Section 80ab to say that section 80ab has to be excluded for the purpose of total income and for the purpose of deduction in the matter of foreign exchange. He would say that the tribunal has committed a serious error in reading Section 80ab also for the purpose of deduction under Section 80-O of the Act. Learned Counsel also would argue that the tribunal has grossly erred in not following the jurisdictional High Court's order dtd 4-6-2001 in CP No. 580/1998 wherein the questions of law were answered in favour of the assessee in similar circumstances.