SEA PEARL INDUSTRIES vs COMMISSIONER OF INCOME TAX

J.B. Koshy, J.

This is a petition filed u/s 261 of the Income Tax Act, 1961 (hereinafter referred to as `the Act'') for granting leave to appeal to the Supreme Court of India against judgment in IT Reference No. 5 of 1992.

The question of law referred in the above case is regarding entitlement of benefits u/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 Corporation Ltd. Vs. R.C. Mishra and Others, . 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 and Metal Trading Corporation Vs. R.C. Mishra and others, . 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.

Section 80HHC was inserted in the Act with effect from 1-4-1983 and it was substituted by 1-4-1986. On the facts and circumstances of the case, we see no grounds to grant a certificate as no questions of public or private importance are raised by the assessee.

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 Mineral & Metal Trading Corpn.''s case (supra) requires reconsideration. In paragraph 9 of the petition, the petitioner has stated as follows:

''It is also respectfully submitted that the judgment of the Hon''ble Supreme Court in Mineral and Metal Trading Corporation Vs. R.C. Mishra and others, to the effect that the assessee, i.e., Ferro Alloys Corporation, in whose account foreign exchange is credited, is not entitled to the benefit u/s 80HHC of the Income Tax Act is not correctly decided and so the same requires reconsideration."

It is not at all a ground for issuing a certificate by High Court as the High Court is bound by the decision of the Apex Court.

Considering the entire aspects of the case, we are of the opinion that it is not a fit case to grant a certificate as prayed for. Therefore, the petition is dismissed.