SEA PEARL INDUSTRIES Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is petition filed under S. 261 of the IT Act (hereinafter referred to as "the Act") for granting leave to appeal to the Supreme Court of India against judgment in IT Ref. No. 5 of 1992 [reported as CIT vs. Sea Pearl Industries (1998) 149 CTR (Ker) 248].

(2.) THE question of law referred in the above case is regarding entitlement of benefits under s. 80HHC of the Act in respect of the exports done through export house. The Tribunal decided the case in favour of the assessee which is a processor of fish mainly relying on the decision of the Delhi High Court in Ferro Alloys Corpn. Ltd. vs. R.C. Mishra, Director, Tax Credit & Ors. (1978) 114 ITR 753 (Del) : TC 70R.444. The question of law referred for opinion was answered against the assessee by us as the above decision was reversed by the Supreme Court in Mineral & Metal Trading Corpn. vs. R.C. Mishra & Ors. (1993) 115 CTR (SC) 547 : (1993) 201 ITR 851 (SC). We have also noted that there was no privity of contract between the foreign buyer and the assessee. They have not entered into any agreement with the foreign buyers for export of goods and exports were done in pursuance of the contract with export houses and foreign buyer. It was also noticed by the Tribunal that the benefit was already availed by the export houses and, admittedly, the assessee did not produce any disclaimer certificate from the export house. considering the decision of the Supreme Court, provisions in the Act, etc. the question was answered against the assessee.

(3.) WE also note that one of the grounds taken by the assessee for issuing the certificate is that the decision of the Supreme Court in M.M.T.C. vs. R.C. Mishra & Ors.' case (supra) requires reconsideration. In para 9 of the petition, the petitioner has stated as follows :