Commissioner of Income Tax vs K.P.V. Shaik Mohamed Rowther and Co. (P) Ltd.

N.V. Balasubramanian, J.—At the instance of the Revenue, the Tribunal has stated the case and referred the following common questions of

law for our consideration u/s 256(1) of the IT Act, 1961 :

Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that Rule 6D of the IT Rules does not apply to

the director of the company and hence no disallowance could be made under Rule 6D in respect of the travelling expenses incurred by the director

?

Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the disallowance towards the commission paid to

the employees of the assessee-company should be restricted to Rs. 40,000 only ?

The assessment years involved are 1981-82 to 1986-87. The Tribunal considered the appeals preferred by the Revenue for the years in

question and passed orders on 11th Feb., 1992. The Tribunal has stated the case on 24th June, 1997. This Court has also taken steps to serve

notice on the assessee. As seen from the records, notice has been sent to the assessee on 7th Dec., 2000, by properly addressed, prepaid and by

registered post with acknowledgement due. The acknowledgement has not been received by the Registry. Hence, it has to be presumed that notice

has been duly served notwithstanding the receipt of the acknowledgement, [vide the decision of the Supreme Court in Basant Singh & Anr. v.

Roman Catholic Mission JT 2002 (7) 563. The assessee has not taken steps to enter appearance. In the circumstances, we hold that the assessee

has been served.

As far as the questions of law referred to us are concerned, we find that so far as the first question of law is concerned, it is covered against the

assessee in view of the decision of this Court rendered in the assessee''s own case COMMISSIONER OF INCOME TAX Vs. K. P. V. SHAIK

MOHAMED ROWTHER AND CO. (P.) LTD., , wherein this Court has held that Rule 6D(2) of the IT Rules would apply to the director and

managing director. Accordingly, we answer the first question of law referred to us in all the Tax Cases in the negative and against the assessee and

in favour of the Revenue.

As far as the second question of law referred to us is concerned, we find that the said question has been concluded in favour of the assessee and

against the Revenue in the decision rendered in more than one case by this Court in Commissioner of Income Tax Vs. K.P.V. Shaik Mohd.

Rowther and Co. (P) Ltd., as well as CIT v. K.P.V. Shaik Mohamed Rowther & Co. (P) Ltd. (supra). In the assessee''s own case this Court has

held that the expenditure incurred for commission payment would depend upon the facts arising in that year. This Court has held that the Tribunal

arrived at the conclusion on the basis of the facts arising in the assessment years under consideration. It is not brought to the attention of this Court

by the learned counsel for the Revenue that there are changes in the circumstances of the case warranting interference by this Court. In the absence

of any such material, we hold that the decision of this Court rendered in the assessee''s own case for the earlier years would squarely apply.

Following those decisions, viz., Commissioner of Income Tax Vs. K.P.V. Shaik Mohd. Rowther and Co. (P) Ltd., and COMMISSIONER OF

INCOME TAX Vs. K. P. V. SHAIK MOHAMED ROWTHER AND CO. (P.) LTD., , we answer the second question of law in all the Tax

Cases in the affirmative, in favour of the assessee and against the Revenue. However, there will be no order as to costs.