mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2283 OF 1996 Messrs Jay Diamond Corporation ....Petitioner Vs, Commissioner of Income Tax & Anr. .....Respondents Mr.S.S. Shetty for the Petitioner Mr.K.R. Choudhari, for the respondents. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : 12TH OCTOBER, 2009 P.C. The petitioners are aggrieved by the order of the Commissioner of Income Tax, Bombay City-VIII, who refused to extend time as applied for by the petitioners under Section 80HHC(2) as it then stood. 2. The petitioner had exported diamonds. The money had to be received on or before 30th September, 1995. Against the value of export namely Rs.15,73,98,476/- upto 30th September, 1995 the foreign exchange remittance were received in the sum of Rs.15,03,17,177/-. Thus what remained to be received was a sum of around Rs. 70.00 lacs. That was also received in the month of October, 1995. The petitioner accordingly filed an application and on queries by the respondents as to why the balance foreign exchange remittance could not be brought within time produced evidence in the form of invoices in respect of the exports made dated Septeber 7, 1995 and October, 10, 1995 in which the purchasing party had promised to make payment within a short period. It is thus apparent that the petitioner was pursuing the matter and the purchasing party had promised to make good the payment and in fact that promise was made good when the amount was brought in October, 1995. 3. The respondents proceeded solely on the footing that in September, 1995 and October, 1995 there was a fluctuation in the value of the rupees. As a result of that the petitioner herein had delayed the bringing of the money to get advantage of the foreign exchange fluctuation. The evidence produced by the petitioner that they had made attempts to get the money and the correspondence from their buyer that they would make payment have not at all been considered. 4. In our opinion, considering that the petitioner had brought 95% of the money within six months and what remained was merely 5% of the amount which also was brought within one month thereafter were relevant facts to be considered by the Respondents before passing the order. The respondents thus has addressed himself to a wrong question without considering the evidence on record. 5. In the light of that the impugned order is set aside. The matter is remanded back to Respondent No.1 to reconsider the matter after hearing the petitioner and to pass appropriate orders. The entire exercise to be completed within three months from the date a copy of this order being served on the Commissioner, who has jurisdiction over the subject matter. Rule made absolute accordingly. No order as to costs. (J.H. BHATIA, J.) (F.I. REBELLO,J.)