{"id":57212,"date":"2007-11-13T00:00:00","date_gmt":"2007-11-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-income-vs-k-ravindranathan-nair-on-13-november-2007"},"modified":"2018-05-23T06:19:31","modified_gmt":"2018-05-23T00:49:31","slug":"commissioner-income-vs-k-ravindranathan-nair-on-13-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-income-vs-k-ravindranathan-nair-on-13-november-2007","title":{"rendered":"Commissioner, Income … vs K. Ravindranathan Nair on 13 November, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner, Income … vs K. Ravindranathan Nair on 13 November, 2007<\/div>\n
Author: Kapadia<\/div>\n
Bench: S. H. Kapadia, B. Sudershan Reddy<\/div>\n
           CASE NO.:\nAppeal (civil)  5173 of 2007\n\nPETITIONER:\nCommissioner, Income Tax,Thiruvananthapuram\n\nRESPONDENT:\nK. Ravindranathan Nair\n\nDATE OF JUDGMENT: 13\/11\/2007\n\nBENCH:\nS. H. Kapadia & B. Sudershan Reddy\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO.   5173        OF 2007
\n(Arising out of S.L.P. (C) No24617 of 2003)
\nWith
\nCivil Appeal No.   5174  of 2007 arising out of S.L.P.(C) No.5647 of 2004,
\nCivil Appeal No.   5175  of 2007 arising out of S.L.P.(C) No.6267 of 2004,
\nCivil Appeal No.   5176  of 2007 arising out of S.L.P.(C) No.12609 of 2004,
\nCivil Appeal No.   5178  of 2007 arising out of S.L.P.(C) No.13747 of 2004,
\nCivil Appeal No.   5179  of 2007 arising out of S.L.P.(C) No.13748 of 2004 ,
\nCivil Appeal No.   5181  of 2007 arising out of S.L.P.(C) No.12325 of 2004,
\nCivil Appeal No.3687 of 2005 and Civil Appeal No.3167 of 2006.\n<\/p>\n
KAPADIA, J.\n<\/p>\n
Processing
\nCivil Appeal No.   5173 of 2007 arising out of S.L.P.(C) No.24617 of 2003,
\nCivil Appeal No.   5174 of 2007 arising out of S.L.P.(C) No.5647 of 2004,
\nCivil Appeal No.   5175 of 2007 arising out of S.L.P.(C) No.6267 of 2004,
\nCivil Appeal No.   5181 of 2007 arising out of S.L.P.(C) No.12325 of 2004.\n<\/p>\n
Leave granted.\n<\/p>\n
2.\tThis is a batch of civil appeals filed by the Department.  For
\nthe sake of convenience we state the facts occurring in Civil
\nAppeal No.          of 2007 arising out of S.L.P.(C) No.24617 of
\n2003 – Commissioner, Income Tax, Thiruvananthapuram v. K.
\nRavindranathan Nair.  Assessee-respondent<\/a> has a factory in
\nwhich he processes cashew nuts which are grown in his farm.
\nThereafter he exports the cashew nuts as an exporter.  For
\nprocessing, the assessee has complete infrastructure.  He has
\nplant and machinery in his factory.  At the same time, the
\nassessee processes cashew nuts which are supplied to him by the
\nexporters on job-work basis.  After processing, the assessee
\nreturns the processed cashew nuts to the exporters.  He earns
\nprocessing charges.  Therefore, the assessee is an exporter and a
\njob worker.\n<\/p>\n
3.\tComputation of Export Incentive under Section 80HHC(3) of
\nthe Income Tax Act, 1961 (“I.T. Act”, for short), is the issue for
\ndetermination in this batch of civil appeals.\n<\/p>\n
4.\tThe assessee made a claim for Export Incentive under
\nSection 80HHC(3) in his returns filed for the assessment year
\n1993-94.  The assessee did not include processing charges
\n(receipts) in his total turnover.  In his return, he indicated his
\nbusiness profits at Rs.1,94,08,220.  The figure of Rs.1,94,08,220
\nincluded the processing  charges (receipts) amounting to
\nRs.1,54,68,811.  However, the assessee did not include the
\nprocessing charges amounting to Rs.1,54,68,811 in his total
\nturnover.  He contended that although the processing
\ncharges(receipts) amounting to Rs.1,54,68,811 constituted part
\nof business profits as computed under Section 28 of the I.T. Act,
\nsince Section 80HHC (3) was the formula to work out export
\nincentive, the said figure of Rs.1,54,68,811 was not includible in
\nthe total turnover in the formula under the said Section
\n80HHC(3) of the I.T. Act.  According to assessee, Section
\n80HHC(3) provided for computation of export
\nincentive\/concession to be computed by allocating business
\nprofits in the ratio of export turnover w by total turnover.  This
\nargument was not accepted by the Department.\n<\/p>\n
5.\tThe narrow dispute which arises for determination is:
\nwhether the Department was right in including processing
\ncharges, amounting to Rs.1,54,68,811, in the total turnover
\nwhile arriving at export profits under Section 80HHC(3) of the
\nAct, as it stood at the material time.\n<\/p>\n
6.\tAccording to A.O., the gross total income of the assessee
\nwas Rs.1,94,08,220 from which an amount of Rs.1,74,13,200
\n(90%) was deducted in terms of clause (baa) to the Explanation to
\nSection 80HHC to arrive at the Business Profits (See: page 52 of
\nthe S.L.P. paper book).\n<\/p>\n
7.\tShri T.L.V. Iyer, learned senior counsel appearing on behalf
\nof respondent-assessee, submitted that Section 80HHC(3) of the
\nI.T. Act provided for export incentives.  According to learned
\ncounsel, the object behind enactment of the said sub-section was
\nto encourage exports.  He, therefore, submitted that the above
\nformula should be read to exclude processing charges from the
\ntotal turnover in the above formula even though such charges
\nconstituted part of the business profits required to be calculated
\nin terms of the provisions of Section 28 to 44D of the I.T. Act.
\nAccording to learned counsel, the word “turnover” includes all
\nreceipts from sale of goods and not from sale of services.
\nAccording to learned counsel, the assessee had two independent
\nbusinesses, in one case he processed and exported his own
\nproducts and in the other he processed the raw material (cashew
\nnuts) supplied by third parties which he processed for earning
\nprocess charges.  According to learned counsel, income from
\nworks contract by way of processing charges were not includible
\nin the denominator, in the above formula, namely, total turnover.
\nAccording to learned counsel, if processing charges were to be
\nincluded in total turnover then the export incentives would stand
\nreduced and that would defeat the very object behind enactment
\nof Section 80HHC(3) of the I.T. Act.  Further, according to learned
\ncounsel, Section 80HHC(3) had granted export incentives only in
\nrespect of receipts in foreign exchange from sale of goods and
\nfrom processing provided such processing was done to goods
\nwhich the taxpayer exported.  That, he was not the exporter of
\ngoods which were only processed for third parties and, therefore,
\nsuch processing charges were not includible in the total turnover
\neven though, such charges were includible in the “business
\nprofits” under clause (baa) to the said Explanation.  In this
\nconnection, learned counsel contended that such processing
\ncharges had no nexus with the activity of exports and, therefore,
\nsuch charges were not includible in the total turnover.  In this
\nconnection, reliance was placed on the judgment of this Court in
\nthe case of Commissioner of Income Tax, Coimbatore v. M\/s.
\nLakshmi Machine Works<\/a>  – 2007(6) Scale 168.\n<\/p>\n
8.\tMr. Vikas Singh, learned Addl. Solicitor General appearing
\non behalf of the Department, contended that in view of
\nExplanation (ba) read with Explanation (baa) to Section 80HHC of
\nthe I.T. Act when the said processing charges were includible in
\nthe business profits the same were also simultaneously includible
\nin total turnover in the above formula.  According to learned
\ncounsel, Section 80HHC provided for export profits; that, in order
\nto compute the quantum of eligible deduction under Section
\n80HHC of the I.T. Act, the Department was right in including the
\nprocessing charges in the Business Profits and if such charges
\nconstituted part of Business Profits then such charges cannot be
\nexcluded from total turnover.  That, Business Profits, under the
\nabove formula, was required to be calculated in accordance with
\nclause (baa) to the said Explanation.  According to learned
\ncounsel, keeping in mind the provisions of Explanation (ba) and
\nExplanation (baa) it is clear that what was includible in the
\nBusiness Profits in the above formula had to be included also in
\nthe total turnover.  Therefore, according to learned counsel, the
\nTribunal as well as High Court had erred in holding that
\nprocessing charges were not includible in the total turnover.  In
\nthis connection, learned counsel placed heavy reliance on the
\njudgment of the Rajasthan High Court in the case of
\nCommissioner of Income-Tax v. Sharda Gum and Chemicals
\n(2007) 288 ITR 116 (Raj).\n<\/p>\n
9.\tFor the sake of convenience we quote hereinbelow Section
\n80HHC as it stood at the material time which reads as follow:
\n“Deduction in respect of profits retained for export business
\n80HHC. (1) Where an assessee, being an Indian company or a
\nperson (other than a company) resident in India, is engaged in the
\nbusiness of export out of India of any goods or merchandise to
\nwhich this section applies, there shall, in accordance with and
\nsubject to the provisions of this section, be allowed, in computing
\nthe total income of the assessee, a deduction of the profits derived
\nby the assessee from the export of such goods or merchandise :
\nProvided that if the assessee, being a holder of an Export House
\nCertificate or a Trading House Certificate (hereafter in this
\nsection referred to as an Export House or a Trading House, as the
\ncase may be,) issues a certificate referred to in clause (b) of sub-
\nsection (4A), that in respect of the amount of the export turnover
\nspecified therein, the deduction under this sub-section is to be
\nallowed to a supporting manufacturer, then the amount of
\ndeduction in the case of the assessee shall be reduced by such
\namount which bears to the  total profits derived by the assessee
\nfrom the export of trading goods, the same proportion as the
\namount of export turnover specified in the said certificate bears to
\nthe total export turnover of the assessee in respect of such trading
\ngoods.\n<\/p>\n
(1A) Where the assessee, being a supporting manufacturer, has
\nduring the previous year, sold goods or merchandise to any
\nExport House or Trading House in respect of which the Export
\nHouse or Trading House has issued a certificate under the proviso
\nto sub-section (1), there shall, in accordance with and subject to
\nthe provisions of this section, be allowed in computing the total
\nincome of the assessee, a deduction of the  profits  derived by the
\nassessee from the sale of goods or merchandise to the Export
\nHouse or Trading House in respect of which the certificate has
\nbeen issued by the Export House or Trading House.
\n(2)(a) This section applies to all goods or merchandise, other than
\nthose specified in clause (b), if the sale proceeds of such goods or
\nmerchandise exported out of India are  received in, or brought
\ninto, India  by the assessee  (other than the supporting
\nmanufacturer)  in convertible foreign exchange  , within a period
\nof six months from the end of previous year or, where the Chief
\nCommissioner or Commissioner is satisfied (for reasons to be
\nrecorded in writing) that the assessee is, for reasons beyond his
\ncontrol, unable to do so within the said period of six months,
\nwithin such further period as the Chief Commissioner or
\nCommissioner may allow in this behalf.\n<\/p>\n
(b) This section does not apply to the following goods or merch-
\nandise, namely:–\n<\/p>\n
(i) mineral oil; and\n<\/p>\n
(ii) minerals and ores  (other than processed minerals and ores
\nspecified in the Twelfth Schedule) .\n<\/p>\n
 Explanation 1.The sale proceeds referred to in clause (a) shall
\nbe deemed to have been received in India where such sale process
\nare credited to a separate account maintained for the purpose by
\nthe assessee with any bank outside India with the approval of the
\nReserve Bank of India.\n<\/p>\n
Explanation 2.For the removal of doubts, it is hereby declared
\nthat where any goods or merchandise are transferred by an asses-
\nsee to a branch, office, warehouse or any other establishment of
\nthe assessee situate outside India and such goods or merchandise
\nare sold from such branch, office, warehouse or establishment,
\nthen, such transfer shall be deemed to be export out of India of
\nsuch goods and merchandise and the value of such goods or
\nmerchandise declared in the shipping bill or bill or export as I-
\nferred to in sub-section (1) of section 50 of the Customs Act,
\n1962 (52 of 1962), shall, for the purposes of this section, be
\ndeemed to be the sale proceeds thereof.\n<\/p>\n
(3) For the purposes of sub-section (1),–\n<\/p>\n
(a) where the export out of India is of goods or merchandise
\nmanufactured  or processed  by the assessee, the profits derived
\nfrom such export shall be the amount which bears to the profits of
\nthe business, the same proportion as the export turnover in respect
\nof such goods bears to the total turnover of the business carried
\non by the assessee;\n<\/p>\n
(b) where the export out of India is of trading goods, the profits
\nderived from such export shall be the export turnover in respect
\nof such trading goods as reduced by the direct costs and indirect
\ncosts attributable to such export ;\n<\/p>\n
I where the export out of India is of goods or merchandise
\nmanufactured  or processed  by the assessee and of trading goods,
\nthe profits, derived from such export shall,–\n<\/p>\n
(i) in respect of the goods or merchandise manufactured  or
\nprocessed  by the assessee, be the amount which bears to the
\nadjusted profits of the business, the same proportion as the
\nadjusted export turnover in respect of such goods bears to the
\nadjusted total turnover of the business carried on by the assessee;
\nand\n<\/p>\n
(ii) in respect of trading goods, be the export turnover in respect
\nof such trading goods as reduced by the direct and indirect costs
\nattributable to export of such trading goods :
\nProvided that the profits computed under clause (a) or clause (b)
\nor clause (c) of this sub-section shall be further increased by the
\namount which bears to ninety per cent of any sum referred to in
\nclause (iiia) (not being profits on sale of a licence acquired from
\nany other person), and clause (iiib) and (iiic) of section 28, the
\nsame proportion as the export turnover bears to the total turnover
\nof the business carried on by the assessee.\n<\/p>\n
Explanations.  For the purposes of this sub-section,–\n<\/p>\n
(a) ‘adjusted export turnover’ means the export turnover as
\nreduced by the export turnover in respect of trading goods;\n<\/p>\n
(b) ‘adjusted profits of the business’ means the profits of the
\nbusiness as reduced by the profits derived from the business of
\nexport out of India of trading goods as computed in the manner
\nprovided in clause (b) of sub-section (3);\n<\/p>\n
I ‘adjusted total turnover’ means the total turnover of the business
\nas reduced by the export turnover in respect of trading goods;\n<\/p>\n
(d) ‘direct costs’ means costs directly attributable to the trading
\ngoods exported out of India including the purchase price of such
\ngoods;\n<\/p>\n
(e) ‘indirect costs’ means costs, not being direct costs, allocated
\nin the ratio of the export turnover in respect of trading goods to
\nthe total turnover;\n<\/p>\n
(f) ‘trading goods’ means goods which are not manufactured  or
\nprocessed  by the assessee.\n<\/p>\n
  (3A) For the purposes of sub-section (1A), profits derived by a
\nsupporting manufacturer from the sale of goods or merchandise
\nshall be,–\n<\/p>\n
(a) in a case where the business carried on by the supporting
\nmanufacturer consists exclusively of sale of goods or merch-
\nandise to one or more Export Houses or Trading Houses, the
\nprofits of the business [***];\n<\/p>\n
(b) in a case where the business carried on by the supporting
\nmanufacturer does not consist exclusively of sale of goods or
\nmerchandise to one or more Export Houses or Trading Houses,
\nthe amount which bears to the profits of the business [***] the
\nsame proportion as the turnover in respect of sale to the
\nrespective Export House or Trading House bears to the total
\nturnover of the business carried on by the assessee.
\n(4) The deduction under sub-section (1) shall not be admissible
\nunless the assessee furnishes in the prescribed form, along with
\nthe return of income, the report of an accountant, as defined in the
\nExplanation below sub-section (2) of section 288, certifying that
\nthe deduction has been correctly claimed  in accordance with the
\nprovisions of this section.\n<\/p>\n
(4A) The deduction under sub-section (1A) shall not be admis-
\nsible unless the supporting manufacturer furnishes in the pre-
\nscribed form along with his return of income,–\n<\/p>\n
 (a) the report of an accountant, as defined in the Explanation
\nbelow sub-section (2) of section 288, certifying that the deduction
\nhas been correctly claimed on the basis of the  profits  or the
\nsupporting manufacturer in respect of his sale of goods or
\nmerchandise to the Export House or Trading House; and\n<\/p>\n
(b) a certificate from the Export House or Trading House
\ncontaining such particulars as may be prescribed and verified in
\nthe manner prescribed that in respect of the export turnover
\nmentioned in the certificate, the Export House or Trading House
\nhas not claimed the deduction under this section :
\nProvided that the certificate specified in clause (b) shall be duly
\ncertified by the auditor auditing the accounts of the Export House
\nor Trading House under the provisions of this Act or under any
\nother law.\n<\/p>\n
Explanation.For the purposes of this section,–\n<\/p>\n
(a) ‘convertible foreign exchange’ means foreign exchange which
\nis for the time being treated by the Reserve Bank of India as
\nconvertible foreign exchange for the purposes of the Foreign
\nExchange Regulation Act, 1973 (46 of 1973), and any rules made
\nthereunder;\n<\/p>\n
(aa) ‘export out of India’ shall not include any transaction by way
\nof sale or otherwise, in a shop, emporium or any other
\nestablishment situate in India, not involving clearance at any
\ncustoms station as defined in the Customs Act, 1962 (52 of
\n1962);\n<\/p>\n
(b) ‘export turnover’ means the sale proceeds, received in, or
\nbrought into, India  by the assessee in convertible foreign
\nexchange  in accordance with clause (a) of sub-section (2)  of any
\ngoods or merchandise to which this section applies and which are
\nexported out of India, but does not include freight or insurance
\nattributable to the transport of the goods or merchandise beyond
\nthe customs station as defined in the Customs Act, 1962 (52 of
\n1962);\n<\/p>\n
(ba) ‘total turnover’ shall not include freight or insurance
\nattributable to the transport of the goods or merchandise beyond
\nthe customs station as defined in the Customs Act, 1962 (52 of
\n1962) :\n<\/p>\n
Provided that in relation to any assessment year commencing on
\nor after the 1st day of April, 1991, the expression total turnover
\nshall have effect as if it also excluded any sum referred to in
\nclauses (iiia), (iiib) and (iiic) of section 28;
\n(baa) ‘profits of the business’ means the profits of the business as
\ncomputed under the head Profits and gains of business or
\nprofession as reduced by
\n(1) ninety per cent of any sum referred to in clauses (iiia), (iiib)
\nand (iiic) of section 28 or of any receipts by way of brokerage,
\ncommission, interest, rent, charges or any other receipt of a
\nsimilar nature included in such profits; and
\n(2) the profits of any branch, office, warehouse or any other
\nestablishment of the assessee situate outside India;
\n [***]
\n [***]
\nI  ‘Export House Certificate’ or ‘Trading House Certificate’
\nmeans a valid Export House Certificate or Trading House
\nCertificate, as the case may be, issued by the Chief Controller of
\nImports and Exports Government of India;\n<\/p>\n
(d)  ‘supporting manufacturer’ means a person being an Indian
\ncompany or a person (other than a company) resident in India,
\nmanufacturing (including processing) goods  or merchandise and
\nselling such goods or merchandise to an Export House or a
\nTrading House for the purposes of export.”\n<\/p>\n
10.\tSection 80HHC has been the subject-matter of frequent
\namendments.  The said section was inserted in 1983.  It was
\nsubstituted in 1985.  Thereafter, it was amended in 1986, 1988,
\n1989, 1990, 1991, 1992, 1994, 1999, 2000, 2003 and 2005.
\nTherefore, while considering the applicability of Section 80 HHC,
\nit is very important to keep in mind the working of the said
\nsection as applicable in a given assessment year.\n<\/p>\n
11.\tIn this civil appeal we are concerned with the assessment
\nyear 1993-94.\n<\/p>\n
12.\tAt this stage, we may mention that, according to High
\nCourt, in order to include any amount in the total turnover the
\nsaid amount must either be the purchase price or the sale price
\nor an item incidental to the transfer of the goods dealt with by the
\nassessee.  According to High Court, the assessee had processed
\nraw cashew nuts belonging to third parties in his factory for
\nwhich he received the said charges; that, the purpose behind the
\nsaid formula was to find out the profits attributable to export
\nturnover i.e. profit on export sales.  Further, according to High
\nCourt, in the above formula business income was to be computed
\nin order to determine the quantum of eligible deduction.  That, in
\nthe said formula, business income in the context of total turnover
\nwas income generated on purchase and sales.  That, in the
\ncontext of Section 80HHC the total turnover referred to sales and
\npurchase turnover and it did not include receipts in the nature of
\nincome which income was not attributable to sales.  Further,
\naccording to High Court, even under the Circulars (Circular
\nNo.621 dated 19.12.91) issued by CBDT a clarification was
\nissued to the effect that to arrive at the quantum of eligible
\ndeduction under Section 80HHC, in the case of an assessee
\nhaving export and domestic business, a fraction of export
\nturnover to total turnover had to be applied to Business Profits
\ncomputed under Section 28 of the I.T. Act.  According to High
\nCourt, such processing charges with which we are concerned had
\nno connection with the word “sale”, therefore, they were not liable
\nto be included in the total turnover.\n<\/p>\n
13.\tBeing aggrieved by the impugned judgments holding that
\nthe said charges were not includible in the total turnover, the
\nDepartment has come to this Court by way of civil appeals.\n<\/p>\n
14.\tThis batch of civil appeals pertains to assessment year
\n1993-94, therefore, we have quoted the said section at it stood on
\nthe material date.\n<\/p>\n
15.\tSection 80 HHC of the I.T. Act was not a charging section.
\nIt was an incentive provision.  Its object was not to ascertain real
\nincome.  Section 80HHC(3) provided for the following formula:
\nProfits of the business x export turnover
\n        total turnover\n<\/p>\n
 16.\tSection 80HHC had a Head Note.  That Head Note said
\n“deduction in respect profits retained for export business”.
\nThe said Head Note was inserted by Finance Act, 1985 w.e.f.
\n1.4.86.  Under the original section as inserted by Finance Act,
\n1983, the Head Note stated “deduction in respect of export
\nturnover”.  Therefore, the very basis shifted from “export
\nturnover” to “retention of profits for export business”.\n<\/p>\n
17.\tUnder Section 80HHC(1) of the I.T. Act it was inter alia
\nprovided that in computing the “total income” a deduction of the
\nprofits derived by the assessee from the export of goods shall be
\nmade.  That, that the words “profits derived from exports” in the
\nsaid sub-section was substituted for the words “whole of income”
\nby Direct Tax Laws (Amendment) Act, 1989 w.e.f. 1.4.89.  The
\nexpression “derived from” in the said sub-section is narrower
\nthan the expression “attributable to”, therefore, it is only “profits
\nderived from exports” which become the basis for working out the
\nsaid formula in Section 80HHC(3) of the Act.  Similarly, by
\nFinance Act, 1991 w.e.f. 1.4.92, for the first time, the expression
\n“profits of the business” stood defined to mean the “profits of the
\nbusiness” as computed under the head “profits and gains of
\nbusiness” under Sections 28 to 44D of the I.T. Act.  Therefore,
\nbefore giving Deduction, under Section 80HHC(3)(a), (b) or (c) of
\nthe I.T. Act, the gross total income of the assessee being profits
\nfrom business had to be arrived at in terms of clause (baa) to the
\nsaid Explanation.  However, one point needs to be noted, namely,
\nwhile calculating “Business Profits” the same had to be done in
\nterms of Section 28 to Section 44D of the I.T. Act alone.  Other
\nprovisions like Sections 70 and 71 of the I.T. Act were excluded.
\nTherefore, in our view, if the said processing charges were a part
\nof gross total income of the taxpayer being profits from business
\nthen it had to be included in the total turnover in the above
\nformula. It is important that deduction has to be from profits as
\nunderstood in the commercial sense.  Moreover, under clause
\n(baa)(1), 90% of any amount referred to in clause (iiia), (iiib) and
\n(iiic) of Section 28 of the I.T. Act or any receipts by way of
\nbrokerage, commission, interest, rent, charges or any other
\nreceipt of a similar nature included in such profits.  The said
\nexpression “included in such profits” indicated that the said
\nprocessing charges formed part of the gross total income being
\nbusiness profits.  This has been clarified by clause (baa) to the
\nsaid Explanation which inserted the definition of “profits from
\nbusiness” in the said Section 80HHC(3) of the I.T. Act.\n<\/p>\n
18.\tIn the present case the A.O. had worked out Business
\nProfits of Rs.1,94,08,220 as gross total income on the basis of
\nincome received from cashew business (See: pages 50 and 52 of
\nthe SLP Paper book).  Even according to assessees, in the above
\nformula his Business Profits included the above-mentioned
\nprocessing charges.  However, according to assessees, the said
\ncharges were not to be included in the total turnover.  We are not
\ninclined to accept the contention of the assessees.  The above
\ndiscussion indicates that the formula in Section 80HHC(3) of the
\nI.T. Act provided for a fraction of export turnover divided by total
\nturnover to be applied to Business Profits calculated after
\ndeducting 90% of the sums mentioned in clause (baa) to the said
\nExplanation.  That, profit incentives and items like rent,
\ncommission, brokerage, charges etc. though formed part of gross
\ntotal income had to be excluded as they were “independent
\nincomes” which had no element of export turnover.  That, the
\nsaid items distorted the figure of export profits.\n<\/p>\n
19.\tIn our view, for the above reasons,  the said processing
\ncharges, which was part of gross total income, was an
\nindependent income like rent, commission, brokerage etc. and,
\ntherefore, 90% of the said sum had to be reduced from the gross
\ntotal income to arrive at the Business Profits and since the said
\nprocessing charge was an important component of Business
\nProfits, it also had to be included in the total turnover in the said
\nformula to arrive at business profits in terms of clause (baa) to
\nthe said Explanation.\n<\/p>\n
20.\tOne point still remains for consideration.  On behalf of
\nassessees it has been vehemently urged that the above-
\nmentioned processing charges, earned by the assessees by
\nprocessing raw cashew nuts for third parties, had no nexus with
\nthe export business and, therefore, such charges were not
\nincludible in the total turnover.  It was also further argued that
\nexport incentives were admissible only in respect of profits on
\nexport sales.  In this connection, it was submitted that the
\nassessees earned processing charges from an activity which had
\nno connection with exports.  According to assessees, no export
\nturnover arose from processing of raw material by the assessees
\nfor third parties and, therefore, the said receipts did not
\nconstitute an element of total turnover.  Therefore, according to
\nassessees, the A.O. had erred in including the said charges in the
\ntotal turnover.  According to assessees, profits derived from local
\nsales were includible in Business Profits but not in the total
\nturnover.\n<\/p>\n
21.\tAt the outset, we may state that, in the present case, we are
\ndealing with the law as it stood during assessment year 1993-94.
\nAt that time Section 80HHC(3) of the I.T. Act constituted a Code
\nby itself.  Subsequent amendments have imposed
\nrestrictions\/qualifications by which the said provision has ceased
\nto be a code by itself.  In the above formula there existed four
\nvariables, namely, business profits, export turnover, total
\nturnover and 90% of the sums referred to in clause (baa) to the
\nsaid Explanation.  In the computation of deduction under Section
\n80HHC all four variables had to be taken into account.  All four
\nvariables were required to be given weightage.  The substitution
\nof Section 80HHC(3) secures profits derived from the exports of
\neligible goods.  Therefore, if all the four variables are kept in
\nmind, it becomes clear that every receipt is not income and every
\nincome would not necessarily include element of export turnover.
\nThis aspect needs to be kept in mind while interpreting clause
\n(baa) to the said Explanation.  The said clause stated that 90% of
\nincentive profits or receipts by way of brokerage, commission,
\ninterest, rent, charges or any other receipt of like nature included
\nin Business Profits, had to be deducted from Business Profits
\ncomputed in terms of Sections 28 to 44D of the I.T. Act.  In other
\nwords, receipts constituting independent income having no nexus
\nwith exports were required to be reduced from Business Profits
\nunder clause (baa).  A bare reading of clause (baa)(1) indicates
\nthat receipts by way of brokerage, commission, interest, rent,
\ncharges etc. formed part of gross total income being Business
\nProfits.  But for the purposes of working out the formula and in
\norder to avoid distortion of arriving export profits clause (baa)
\nstood inserted to say that although incentive profits and
\n“independent incomes” constituted part of gross total income,
\nthey had to be excluded from gross total income because such
\nreceipts had no nexus with the export turnover.  Therefore, in the
\nabove formula, we have to read all the four variables.  On reading
\nall the variables it becomes clear that every receipt may not
\nconstitute sale proceeds from exports.  That, every receipt is not
\nincome under the I.T. Act and every income may not be
\nattributable to exports.  This was the reason for this Court to
\nhold that indirect taxes like excise duty which are recovered by
\nthe taxpayers for and on behalf of the government, shall not be
\nincluded in the total turnover in the above formula (See:
\nCommissioner of Income Tax, Coimbatore v. M\/s. Lakshmi
\nMachine Works<\/a>  – 2007(6) Scale 168).\n<\/p>\n
22.\tIn the present case, the processing charges were included in
\nthe gross total income from cashew business.  That, even
\naccording to assessee the said charges constituted an important
\ncomponent of gross total income from cashew business.  This is
\nnot disputed.  Therefore, in terms of clause (baa), 90% of the
\n“independent income” had to be deducted from gross total income
\nto arrive at Business Profits to which the fraction had to be
\napplied.  Since, the processing charges constituted independent
\nincome similar to rent, commission, etc., which formed part of
\nthe gross total income, the same had to be reduced by 90% as
\ncontemplated in clause (baa) to arrive at Business Profits.
\nTherefore, the said processing charges were includible in the total
\nturnover in the formula under Section 80HHC(3) of the I.T. Act.\n<\/p>\n
23.\tBefore concluding we state that the nature of every receipt
\nneeds to be ascertained in order to find out whether the said
\nreceipt forms part of\/or that it has an attribute of an export
\nturnover.  When an indirect tax is collected by the taxpayer on
\nbehalf of the government the tax recovered is for the government.
\nIt may be an income in the conceptual sense or even under the
\nI.T. Act but while working out the formula under Section
\n80HHC(3) of the I.T. Act and while applying the four variables one
\nhas to ascertain whether the receipt has an attribute of export
\nturnover.  An indirect tax like excise duty does not have that
\nelement of export turnover as understood in the above formula.
\nAs stated above, it is recovered by the taxpayer on behalf of the
\ngovernment.  Therefore, in the present cases, our judgment in
\nCommissioner of Income Tax, Coimbatore v. M\/s. Lakshmi
\nMachine Works<\/a>  – 2007(6) Scale 168, has no application.\n<\/p>\n
24.\tAccordingly, the impugned judgments of the High Court and
\nthe Tribunal are set aside and the above civil appeals filed by the
\nDepartment are accordingly allowed with no order as to costs.\n<\/p>\n
Loss (Negative Profits)
\nCivil Appeal No.              of 2007 arising out of S.L.P.(C) No.13747 of 2004,
\nCivil Appeal No.               of 2007 arising out of S.L.P.(C) No.13748 of 2004 ,
\nCivil Appeal No.3687 of 2005.\n<\/p>\n
25.\tLeave granted.\n<\/p>\n
26.\tA short question which arises for determination in this
\nbatch of civil appeals filed by the Department is:
\n“Whether in the matter of computation of deduction,
\nunder Section 80HHC(3)(c) of the I.T. Act, losses
\nsuffered by the taxpayer in the export of trading
\ngoods can be set off\/adjusted against profits from
\nexport of manufactured goods and vice versa and
\nwhether the assessee would be entitled to deduction
\nif after such adjustments\/set off the net figure is a
\nloss.”\n<\/p>\n
27.\tIn a recent judgment of this Court in the case of A.M.
\nMoosa v. Commissioner of Income-tax<\/a>  [2007] 294 ITR 1(SC),
\nthis Court vide para 11 has ruled as follows:\n<\/p>\n
“A plain reading of section 80HHC makes it clear
\nthat in arriving at the profits earned from export of
\nboth self-manufactured goods and trading goods,
\nthe profits and losses in both the trades have to be
\ntaken into consideration.  If after such adjustments
\nthere is a positive profit, the assessee would be
\nentitled to deduction under section 80HHC(1).  If
\nthere is a loss he will not be entitled to any
\ndeduction.”\n<\/p>\n
28.\tAccordingly, civil appeals filed by the Department stand
\nallowed, the impugned judgments of the High Court are set aside
\nand the matters are remitted to A.O. for fresh disposal of the
\ncases in accordance with the judgment of this Court in A.M.
\nMoosa (supra). No order as to costs.\n<\/p>\n
Processing and Negative Profits (loss)
\nCivil Appeal No.                of 2007 arising out of S.L.P.(C) No.12609 of 2004.\n<\/p>\n
29.\tLeave granted.\n<\/p>\n
30.\tAssessee is a company engaged in cashew business.\n<\/p>\n
31.\tFor the assessment year 1993-94 assessee did not include
\nprocessing charges in its total turnover for computing deduction
\nunder Section 80HHC of the I.T. Act.\n<\/p>\n
32.\tAssessee adjusted its losses from export of trading goods
\nagainst profits from export of manufacturing goods for
\ndetermining its export profits.\n<\/p>\n
33.\tTherefore, two following questions arise for determination:
\n“Whether processing charges were includible in the
\n“total turnover” in the formula in Section 80HHC(3),
\nas it stood at the material time, for computing
\ndeduction under Section 80HHC of the I.T. Act.”\n<\/p>\n
“Whether in the matter of computation of deduction,
\nunder Section 80HHC(3)(c) of the I.T. Act, losses
\nsuffered by the taxpayer in the export of trading
\ngoods can be set off\/adjusted against profits from
\nexport of manufactured goods and vice versa and
\nwhether the assessee would be entitled to deduction
\nif after such adjustments\/set off the net figure is a
\nloss.”\n<\/p>\n
34.\tFor the reasons given hereinabove, we answer both the
\nabove questions in favour of the Department and against
\nassessee.  Accordingly civil appeal filed by the Department is
\nallowed, the impugned judgment of the High Court is set aside
\nand the matter is remitted to A.O. for fresh disposal of the case in
\naccordance with law declared hereinabove on both the points. No
\norder as to costs.\n<\/p>\n
Civil Appeal No.3167 of 2006\n<\/p>\n
35.\tIn view of the Judgment in Commissioner of Income Tax,
\nCoimbatore v. M\/s. Lakshmi Machine Works<\/a>  – 2007(6) Scale
\n168, Civil Appeal No.3167 of 2006 filed by the Department is
\naccordingly dismissed with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner, Income … vs K. Ravindranathan Nair on 13 November, 2007 Author: Kapadia Bench: S. H. Kapadia, B. Sudershan Reddy CASE NO.: Appeal (civil) 5173 of 2007 PETITIONER: Commissioner, Income Tax,Thiruvananthapuram RESPONDENT: K. Ravindranathan Nair DATE OF JUDGMENT: 13\/11\/2007 BENCH: S. H. Kapadia & B. Sudershan Reddy JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-57212","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner, Income ... vs K. 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