K.G Bansal, A.M:— The only ground taken in this case is that on the facts and in the circumstances of the case and in law, the ld. CIT (Appeals) erred in directing the AO to allow deduction u/s. 80HHC of the Income-tax Act, 1961 (‘the Act’ for short) in respect of export quota premium.
2. At the outset, the ld. counsel for the assessee submitted that the issue stands covered by the decision of “F” Bench of Delhi Tribunal in its own case in ITA No. 14(Del)/2008 for assessment year 1999-1900, dated 26.09.2008, a copy of which has been placed in the paper book. This order placed reliance on the decision of the Tribunal in assessee's case for assessment years 2001-2002 and 2003-2004, which reads as under:—
“In our view, it is not necessary for us to go into the issue whether the letter under reference from CBDT is a circular or not. We find that the Assessing Officer has already treated the premium on sale of export quota as being of the same nature as profit on sale of import licenses as mentioned in section 28(iiia) because he has already deducted 90% of the premium on sale of export quota from the profit of business as per Explanation (baa). Under the provisions of Explanation (baa) only 90% of the sums referred in clauses (iiia), (iiib)(iiic) of section 28 etc. or any receipts of similar nature are required to be excluded. As the Assessing Officer had deducted 90% of premium on sale of export quota as per Explanation (baa), he has already treated the nature of premium on sale of export quota as that of the sum referred in section 28(iiia), which relates to receipts from sale of import licenses. Once, the Assessing Officer has treated the nature of premium on sale of export licenses mentioned in section 28(iiia), he cannot deny the benefit of increase as mentioned in provisos to section 80HHC(3) as per which 90% of sum mentioned in section 28(iiia) in the ratio of export turnover to total turnover has to be added to the profit computed u/s. 80HHC(3). The Chandigarh Bench of the Tribunal in case of Gateway Pvt. Ltd. (supra), has also allowed the claim of the assessee in relation to premium on sale of export quota while computing deduction u/s. 80HHC. In view of the foregoing discussion, we are of the view that the assessee is entitled to the benefit of increase to the profit as provided in the proviso to section 80HHC(3) in relation to premium on sale of export quota on sale of export quota on the facts of the case. Accordingly, we set aside the order of CIT (Appeals) and allow the claim of the assessee.”
2.1 The two benches of the Tribunal have held that the export quota premium is the sum referred to in section 28(iiia) of the Act. Therefore, in terms of proviso to section 80HHC(3), 90% of the sum has to be considered as provided thereunder for the purpose of computation of profit eligible for the deduction. Accordingly, we uphold the order of the ld. CIT (Appeals).
3. In the result, the appeal is dismissed.