Excise duty and sales tax are not to be included in the total turnover for the purpose of computing deduction u/s 80HHC as they do not partake of the character of turnover.

K. Raviraja Pandian, J.

This appeal is filed by the revenue against the order of the Income Tax Appellate Tribunal Madras D Bench dated 111. 2004 in I.T.A.No.1545/Mds/97 for the assessment year 1995-96, by formulating the following substantial question of law:-

"Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the sales tax and excise duty have to be excluded from the total turnover to work out the deduction u/s 80 HHC in relation to export profits?

2. The material facts culled out from the statement of facts in the memorandum of grounds go as follows:-

The assessee is a company. On 29.03.1996, the original assessment of the assessee company under Section 143(3) for the assessment year 1995-96 was complied with at Rs.67,38,530/-. While completing the assessment, the Assessing Officer found that the assessee had not included sales tax and excise duty in the total turnover for the purpose of deduction u/s 80HHC. It was further held by the Assessing Officer that the sale tax and excise duty would form part of the sale receipts in view of the decision of the Supreme Court in 87 ITR 542. The Assessing Officer has also further held that the principle laid down by the Supreme Court in 154 ITR 148 would also support that view and hence recomputed the deduction u/s 80HHC including sales tax and excise duty in the total turnover. Aggrieved by the order of the assessing officer, the assessee filed an appeal before the Commissioner of Income Tax (Appeals), who by his order dated 06.05.1996, following the decision of the Income Tax Appellate Tribunal in the case of Chloride India held that the sale tax and excise duty should be excluded from the total turnover for the purpose of computing deduction u/s 80HHC. Aggrieved by the order of the Commissioner of Income tax (Appeals), the revenue filed an appeal before the Income Tax Appellate Tribunal and the Tribunal following the decision of the Bombay High Court in the case of Sudharshan Chemical Industries Ltd. reported in 245 ITR 769 held that excise duty and sales tax were not includible in the total turnover for computation of deduction u/s 80HHC and dismissed the Revenues appeal. The correctness of the said the order of the Income-tax Appellate Tribunal is now canvassed before this Court by the Revenue in this appeal.

3. Learned counsel appearing for the revenue has fairly submitted that the issue involved in this appeal is covered by the judgement of the Supreme Court in the case of Commissioner of Income Tax vs. Catapharma (India) P. Ltd., reported in (292 ITR 641).

4. We have heard the argument of the learned counsel for the appellant.

5. In the case of Commissioner of Income Tax vs. Catapharma (India) P. Ltd., reported in (292 ITR 641), the Supreme Court has held as follows:-

"While calculating the deduction under Section 80HHCa(3)(b) of the Income Tax Act, 1961, for computing the "total turnover" of exports out of India of trading goods, excise duty and sales tax are not to be included.

The Object of the Legislature in enacting Section 80HHC was to confer a benefit on profits accruing with reference to export turnover. Just as commission received by an assessee is relatable to exports and yet it cannot form part of "turnover", excise duty and sales tax also cannot form part of the "turnover" for the purposes of section 80HHC. Just as interest, commission, etc., emanate from such "turnover" so also excise duty and sales tax do not emanate from such turnover. Since excise duty and sales tax do not involve any such turnover, such taxes have to be excluded.

Commission, interest, rent, etc., do yield profits, but they do not partake of the character of turnover and therefore they are not includible in the "total turnover" under Section 80HHC(3), otherwise the formula becomes unworkable".

6. In the light of the above decision, we are of the view that there is no question of law much less substantial question