The Commissioner Of Income Tax,Mumbai City 16 v. M/S.crystal Gyms

ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1074 OF 2011 The Commissioner of Income Tax,Mumbai City 16 .. Appellant Vs. M/s.Crystal Gyms .. Respondent. Mr.Suresh Kumar for the appellant Mr.Jitendra Jain with Mr.Jas Sanghavi i/b M/s.PDS Legal for the respondent CORAM: J.P. DEVADHAR & K.K. TATED, JJ.DATE: 12TH OCTOBER, 2011. P.C. 1. Three questions of law raised by the Revenue in this appeal read thus: “1. Whether in the facts and circumstances of the case and in law, the Tribunal erred in directing the AO to include sum of Rs.24,33,12,251/- in the export turnover of the assessee for the purpose of working out the deduction u/s.80 HHC of the IT Act? 2. Whether in the facts and circumstances of the case and in law, the Tribunal erred in directing the AO to include Rs.1,66,68,097/- being gain from foreign exchange fluctuation both in the export turnover as well as total turnover? 3. Whether in the facts and circumstances of the case and in law, the Tribunal erred in directing the AO to include Rs.1,36,63,816/- in the export turnover of the assessee being the sell process of semi process for unmarkable diamonds?” 2. As regards the first question is concerned, it is not in dispute that the export proceedings in question have been received within the extended period granted by the RBI. In this view of the matter, no fault can be found with the decision of the ITAT in directing the Assessing Officer to include the amount of Rs.24.33 crores in the export turn over of the Assessee for the purpose of working out the deduction under section 80 HHC of the Income Tax Act, 1961. 3.As regards second question is concerned, counsel for the parties state that the second question stands answered against the Revenue by the decision of this court in the case of CIT vs. Amber Exports (India) reported in (2010) 436 ITR 455. Accordingly, second question cannot be entertained. 4. As regards third question is concerned, perusal of the order passed by the ITAT, particularly para 5 thereof shows that the ITAT has restored the issue to the file of the Assessing Officer for fresh computation in accordance with law. In this view of the matter, third question cannot be entertained. 5. Appeal is accordingly dismissed. No order as to costs. (K.K. TATED, J.) (J.P. DEVADHAR, J.)