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Judgment
Kania, J. - This is an application u/s. 256(2) of the IT Act, 1961, for directing the ITAT to refer to this court for determination of the two questions set out therein and for stating a case for that purpose.
As far as question No. 1 is concerned, we find that the same is covered by the decision of this Court in CIT, Bombay City-VI v. Sadabhakti Prakashan Printing Press (P) Ltd. (1980) 125 ITR 376 . In view of this decision, that question must obviously be decided in favour of the assessee and there is no point in directing the Tribunal to refer that question to us for determination.
As far as question No. 2 is concerned, we find that the Tribunal has referred to its two earlier orders in respect of earlier assessments in the case of the same assessee and in those orders all the evidence produced including the resolution passed by the Board of Directors, authorising the payment of secret commission and the conditions in the trade of selling Dyes and Chemicals, which the Tribunal concluded was a highly competitive trade. It is in view of this evidence that the Tribunal has accepted the payment of the secret commission and allowed the same as a deduction. This finding is essentially a finding of fact. It is not sought to be contended by the department that the finding is based on no evidence at all or is perverse. Hence we see no reason to direct the Tribunal to refer that question to us for determination.
Rule discharged with no order as to costs.