1. Leave granted. The question of law that was raised by the Appellant-Revenue herein before the High Court was as to whether trading activity carried on by the SEZ unit of the Respondent-Assessee is to be considered as service eligible for exemption Under Section 10AA of the Income-tax Act, 1961 (hereinafter referred to as Act). It was the submission of the Appellant that for this purpose, the Income-tax Appellate Tribunal could not have relied upon the definition of services as per SEZ Rules when there is no such provision under Section 10AA of the Act.
2. A perusal of the order of the High Court shows that this aspect is not considered and brushed aside by merely saying that the Tribunal has held it to be a service and that it is a question of fact. No doubt, insofar as activity carried on by the Respondent-Assessee is concerned, factual aspects are not in dispute. However, whether that would constitute service within the meaning of Section 10AA of the Act would be a question of law and not a question of fact. The High Court is, therefore, in error in not entertaining the said plea and dismissing the appeal of the Revenue by labelling it as a question of fact. We, accordingly, set aside the order of the High Court and remand the case to the High Court to decide the aforesaid question of law. Accordingly, the appeal stands disposed of.
