J.B. Koshy, J. 1. These income-tax reference cases relate to the assessment years 1985-86 and 1986-87. The reference applications under Section 256(1) of the Income-tax Act, 1961, were filed by the Commissioner of Income-tax seeking reference of three common questions arising out of the consolidated order of the Tribunal for the above two years. The Tribunal was of the opinion that "as the main issue involved is whether the assessee is entitled to get the benefit under Section 80HHC on the exports made through export houses", only one question as refrained by it need be referred and the following question was referred for opinion :
"Whether, on the facts and in the circumstances of the case, the asses-see being a processor and having exported its goods through export houses is entitled to the benefit under Section 80HHC of the Income-tax Act, 1961, without producing the disclaimer certificate from the export house ?"
2. Dissatisfied by the same, the Revenue filed two original petitions, viz., O. P. Nos. 20497 of 1997 and 20573 of 1997 under Section 256(2) of the Income-tax Act for compelling reference of the other questions also.
3. It is submitted by the senior standing counsel for the Income-tax Department that if the words "its goods" are deleted from the question referred for opinion the other two original petitions will not be pressed. The Tribunal itself held that the main issue involved is whether the asses-see is entitled to get the benefit under Section 80HHC on the exports made through export houses. Therefore, the words "its goods" can be omitted from the question referred for our opinion. Counsel for the assessee has raised no objection to the same. Accordingly, we are answering the following question :
"Whether, on the facts and in the circumstances of the case, the assessee being a processor and having exported through export houses is entitled to the benefit under Section 80HHC of the Income-tax Act, 1961, with out producing the disclaimer certificate from the export house ?"
4. Section 80HHC gives benefits for export of goods from India. The above section came into force on April 1, 1983, and it granted a deduction based on percentage of export turnover. The section was substituted by the Finance Act, 1985, with effect from April 1, 1986, which granted deduction with reference to export profits. During these periods, the benefit of Section 80HHC was given only to the real exporters and there were demands from supporting manufacturers/processors for getting the benefit of the section and under the Board's Circular No. 466, dated August 14, 1986 (see 161 ITR (St.) 68), the benefit was given to the supporting manufacturers also provided they produced a disclaimer certificate from export houses.
5. In this case, admittedly, there was no export contract between the asses-see, a processor of fish products, and the foreign buyer. The contract was between the export houses and the foreign buyer and there was no privity of contract between the assessee and the foreign buyer. As per the agreement between the export houses and the processor-assessee, the foreign exchange received on account of the transaction was finally credited to the assessee's account. No disclaimer certificate from the export house was also produced to show that export houses have not received the benefit. In these circumstances, in the assessee's own case in the year 1983-84 in I.T.R. No. 5 of 1992, we have held that the assessee not being the real exporter is not entitled to the benefit of Section 80HHC. Both sides concede that the decision in I. T. R. No. 5 of 1992--CIT v. Sea Pearl Industries (No. 1) [1999] 238 ITR 542 (common judgment in I. T. R. Nos. 191 of 1991 and 5 of 1992 dated June 25, 1998) is applicable to this case also. In the above case it was held as follows (page 550) :
"Considering the entire facts and circumstances of the case we are of the view that the ratio of the decision of the Supreme Court in Mineral and Metal Trading Corporation v. R. C. Mishra [1993] 201 ITR 851 referred to earlier applies in this case and the assessees are not entitled to the benefit of Section 80HHC of the Act as the real exporters are the export houses. Therefore, we answer the questions referred to this court in the negative, that is, against the assessees and in favour of the Revenue."
6. Following the very same reasoning contained in the above judgment, we answer the question referred to this court in the negative, that is, against the assessee and in favour of the Revenue.