Income-tax---

----Special deductions ---Assessee exporter of garments---Bringing export proceeds into India---Time-limit of six months---Application for extension of time under S.80-HHC(2)--- Cannot be rejected on ground that application not made before expiry of time stipulated---Indian Income Tax Act, 1961, S.80-HHC.

The assessee was an exporter of garments. For the assessment year 1991-92 in respect of which the previous year ended on March 31, 1991, the assessee filed on November 26, 1991, an application seeking extension of time under section 80-HHC(2)(a) of the Income Tax Act, 1961, up to December 31, 1991, for bringing foreign exchange into India in respect of exports it had made. As the Commissioner of Income-tax was of the view that there was no provision for extension of time in a case where the application was moved after the period of six months from the end of the previous year, he rejected the application. On a writ petition:

Held, allowing the petition, that under section 80-HHC of the Act, the assessee is required to bring into India sale proceeds of goods in convertible foreign exchange within a period of six months from the end of the previous year or within such further period as the Commissioner may permit. The statutory period of six months had expired on September 30, 1991, when the assessee moved the application on November 26, 1991, for extension of time. The application made by the assessee for extension of time after the expiry of the period of six months from the end of the previous year was maintainable and so the Commissioner of Income-tax was not justified rejecting the application.

CIT v. Ajanta Electricals (1995) 215 ITR 114 (SC) rel.

Assam Frontier Veneer and Saw Mills v. CIT (1976) 104 ITR 479 (Gauhati); CIT v. S.P. Viz Construction Co. (1987) 165 ITR 732 (Pat.); Sunderdas Thackersay & Bros. v. CIT (1982) 137 ITR 646 (Cal.) and Venkata Krishnaiah (T.) & Co. v. CIT (1974) 93 ITR 297 (AP) ref.

O.P. Dua and Sanjeev Sabharwal for Petitioner.

B. Gupta and R.K. Chaufla for Respondents.

JUDGMENT

ANIL DEV SINGH, J. ---Learned counsel for the petitioner submits that the matter can be-disposed of in the light of the decision of the Supreme Court in CIT v. Ajanta Electricals (1995) 215 ITR 114.

The petitioner is an exporter of garments. The assessment year in question is 1991-92 which ended on March 31, 1991. On November 26, 1991, it filed an application seeking extension of time up to December 31, 1991, for bringing foreign exchange into India in respect of the export which it had made. The petitioner thereafter filed another application, dated December 11, 1991, reiterating its earlier request for extension of time.

According to section 80-HHC(2)(a) of the Income Tax Act, 1961, the assessee is required to bring into India sale proceeds of goods in convertible foreign exchange within a period of six months from the end of the previous year or within such further period as the Chief Commissioner or Commissioner of Income-tax tray permit. It is not disputed that the statutory period of six months in the case had already expired on September 30, 1991, when the petitioner moved the application on November 26, 1991, for extension of time. The learned Commissioner of Income-tax felt that since there was no provision for extension of time in a case where the application was moved after the said period of six months, he rejected the application of the petitioner on January 18, 1993. Thereafter, the petitioner moved the present writ petition challenging the said order of the Commissioner, dated January 18, 1993.

In view of the aforesaid decision of the Supreme Court in CIT v. Ajanta Electricals (1995) 215 ITR 114, the order of the Commissioner of Income-tax needs to be set aside. In the aforesaid decision, the Supreme Court observed as under (page 123):

"We hold that the view taken by the Punjab and Haryana High Court in these cases and by the Calcutta High Court in Sundardas Thackersay & Bros. v. CIT (1982) 137 ITR 646 is correct and the contrary view taken by the Andhra Pradesh High Court in T. Venkata Krishnaiah & Co. v. CIT (1974) 93 ITR 297, the Gauhati High Court in Assam Frontier Veneer and Saw Mills v. CIT (1976) 104 ITR 479 and the Patna High Court in CIT v. S.P. Viz. Construction Co. (1987) 165 ITR 732 is not correct. The applications made by the assessees under section 139(2) for extension of time after the expiry of the time allowed were maintainable and,. therefore, valid. We, therefore, dismiss the appeals but pass no order as to costs."

Having regard to the aforesaid decision of the Supreme Court, the order of the Commissioner of Income-tax, Delhi, dated January 18, 1993, is set aside. The learned Commissioner of Income-tax will now decide the application in accordance with law and in the light of the order of the Supreme Court.

M.B.A./1537/FC???????????????????????????????????????????????????????? ?????????? Order accordingly.